FBI Resumes Buying Americans’ Location Data from Brokers Without Warrants, Director Confirms

“We do purchase commercially available information that is consistent with the Constitution and the laws under the Electronic Communications Privacy Act, and it has led to some valuable intelligence for us,” Patel testified Wednesday. Wyden said buying information on Americans without obtaining a warrant was an “outrageous end-run around the Fourth Amendment,” referring to the constitutional law that protects people in America from device searches and data seizures.

When reached, a spokesperson for the FBI declined to comment beyond Patel’s remarks, and did not provide answers to questions about the agency’s purchase of commercial data, including how often the FBI obtained location data and from which brokers.

Government agencies typically have to convince a judge to authorize a search warrant based on some evidence of a crime before they can demand private information about a person from a tech or phone company. But in recent years, U.S. agencies have skirted this legal step by purchasing commercially available data from companies that amass large amounts of people’s location data originally derived from phone apps or other commercial tracking technology.

For example, U.S. Customs and Border Protection purchased a tranche of data sourced from real-time bidding, or RTB, services. These technologies are central to the mobile and web advertising industry, and they collect information such as location and other identifiable data used to target people viewing ads. Surveillance firms can observe this process and gather information about a user’s location, and then potentially sell that data to brokers or federal agencies looking to circumvent the warrant process.

The FBI claims it does not need a warrant to use this information for federal investigations, though this legal theory has not yet been tested in court. Last week, Wyden and several other lawmakers introduced a bipartisan, bicameral bill called the Government Surveillance Reform Act, which among other things would require a court-authorized warrant before federal agencies can buy Americans’ information from data brokers.

The practice raises concerns about mass surveillance conducted without judicial oversight, as agencies can track Americans’ movements and activities by purchasing data that would otherwise require a warrant if obtained directly from phone companies or tech platforms.