American military spies have been buying US citizens’ location data collected by smartphone apps without a warrant, according to a recently unclassified memo.
Analysts for the Defense Intelligence Agency, the Pentagon-run department that specializes in military intelligence, made the revelation in a memo written to Senator Ron Wyden, the Democrat from Oregon.
According to the memo, the DIA has searched commercial databases that contain information about the movements of American citizens as part of five separate investigations spread out over the past two-and-a-half years.
The DIA, whose main mission is to detect threats to American soldiers stationed worldwide, appears to be buying location data that specifically pertains to investigations of foreigners abroad.
The DIA admitted in the memo, first obtained by The New York Times, that it buys the data from private data brokers and that the data isn’t vetted based on whether the smartphone user lives in the United States or abroad.
A military spy agency run by the Pentagon is buying location data mined from American consumers' cell phones and devices without obtaining a warrant, it has been learned. The above image is a 2015 stock photo of a man using an iPhone 6 and an Apple Watch
Analysts for the Defense Intelligence Agency, the Pentagon-run department that specializes in military intelligence, made the revelation in a memo written to Senator Ron Wyden, the Democrat from Oregon
‘Permission to query the US device location data has been granted five times in the past two and a half years for authorized purposes,’ according to the DIA memo.
Data brokers are private companies that collect and sell people’s information, including their locations.
These firms pay smartphone app makers and web sites for the information. They can then aggregate it and sell it to whoever is willing to pay for it, including the government.
The memo states that DIA ‘personnel can only query the US location database when authorized through a specific process’ which requires approval from agency leaders as well as the Office of Oversight and Compliance and the Office of General Counsel.
The agency memo says DIA is not bound by a 2018 decision by the Supreme Court in Carpenter v. United States requiring the government to obtain a warrant before forcing phone companies to hand over location data about their customers.
The DIA admitted in the memo, first obtained by The New York Times, that it buys the data from private data brokers and that the data isn’t vetted based on whether the smartphone user lives in the United States or abroad
According to the memo, the DIA has searched commercial databases that contain information about the movements of American citizens as part of five separate investigations spread out over the past two-and-a-half years
The court ruled in a 5-4 decision that the government violated the Fourth Amendment to the US Constitution, which prohibits ‘unreasonable searches and seizures.’
Prior to the ruling, government agencies were allowed to get cell phone location records without asking a court for a search warrant by claiming that the information was required as part of an investigation.
‘D.I.A. does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes,’ the agency memo said.
Wyden gave a speech on the Senate floor earlier this week in which he vowed to put forward a bill that would close all legal loopholes allowing government agencies access to Americans’ location data.
The senator from Oregon said it was improper for there to be an instance ‘in which the government, instead of getting an order [from a court], just goes out and purchases the private records of Americans from these sleazy and unregulated commercial data brokers who are simply above the law.’
‘The Fourth Amendment is not for sale,’ Wyden said.
Senator Ron Wyden, a Democrat from Oregon, plans to introduce legislation banning government agencies from obtaining commercially available user data
The American Civil Liberties Union condemned the DIA's purchase of Americans' user data as unconstitutional.
'This memo confirms that yet another government agency is purchasing and searching through Americans’ location data without ever getting a warrant,' said ACLU senior attorney Ashley Gorski.
'The government cannot simply buy our private data in order to bypass bedrock constitutional protections.
'Congress must end this lawless practice and require the government to get a warrant for our location data, regardless of its source.'
In recent years, news reports surfaced indicating that law enforcement agencies have used commercially available data aggregated from users’ smartphones.
Two agencies run by the Department of Homeland Security - Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) - used the data to patrol the border and investigate undocumented immigrants, The Wall Street Journal found.
In October, DHS officials produced a legal memo claiming that law enforcement agencies did not need to obtain a search warrant in order to use smartphone location data, according to BuzzFeed News.
This past November, Motherboard reported that the US military buys location data mined from a Muslim prayer app, Muslim Pro, which has been downloaded more than 98 million times worldwide.
According to the report, Muslim Pro sent its users’ location data to a private brokerage firm, X-Mode, which then sold it to military contractors and the Pentagon.
In response to the report, Muslim Pro announced it would cease sharing data with X-Mode. Apple and Google said they would ban any apps that use X-Mode’s tracking software from mobile devices that run their iOS and Android operating systems.
During confirmation hearings earlier this week, Wyden asked President Joe Biden’s new director of national intelligence, Avril Haines, about ‘abuses’ involving consumers’ location data.
Haines said that she was not yet up to speed on the issue but that she would urge the government to be more transparent about its use of commercially available cell phone data.
‘I would seek to try to publicize, essentially, a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under,’ she said.
‘I think that’s part of what’s critical to promoting transparency generally so that people have an understanding of the guidelines under which the intelligence community operates.’