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Warrant-free tracking: the FBI has revealed it buys commercially available location data, allowing surveillance without the warrants normally required for direct government tracking.
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Smartphone applications gather millions of locations every day and sell them to brokers who can offer them to the police without legally having to obtain a warrant.
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Legal experts warn that this activity is likely occurring without any accountability, contradicting the Fourth Amendment protection, and lawmakers are proposing legislation to mandate that all purchases of location data require a warrant.
According to the FBI’s Director, the FBI acquires location information from retail establishments to monitor U.S. citizens. Privacy advocates have raised major concerns about government surveillance and privacy rights. Additionally, this has become a common discussion topic now – it involves how law enforcement can obtain access to someone’s personal information in today’s digital world.
With this information coming directly from the FBI’s Director, there has been an increased concern about the infringement of the privacy of the citizens. Also, many are skeptical that the government is able to purchase data and avoid having to go through the normal process of obtaining a warrant prior to conducting surveillance on an individual.
After law enforcement collects data by way of purchasing it, they can obtain records of where an individual has been, who they associate with, and how they traveled from one place to another, all without having to present sufficient evidence or proof to a Judge to warrant such a surveillance order.
How the Government Buys Your Location Data
The process works through a largely unregulated industry of data brokers that collect information from everyday apps and services. Many free smartphone apps, weather services, games, and even flashlight tools track users’ locations constantly. The companies then package and sell this data to anyone who is willing to pay for it, including law enforcement.
According to the Federal Trade Commission (FTC), the data broker industry collects an enormous amount of location-based information and pings daily from millions of ordinary Americans who likely do not know that their data is being sold for profit to a variety of companies, including those in law enforcement. Now that the FBI has confirmed that the taxpayer is funding this data broker practice, they are circumventing the protections in the U.S. Constitution.
For many years, the Electronic Frontier Foundation has cautioned that by purchasing data from a data broker, the government can circumvent the Fourth Amendment’s protection from unreasonable searches and seizures.
Law enforcement typically can only seize a suspect’s cell phone in real-time when they obtain a warrant that establishes probable cause. But buying historical location data from brokers requires no such legal oversight.
Privacy Concerns and Legal Issues
Privacy advocates believe that tracking individuals’ locations gives out highly sensitive data, including home, job, place of worship, medical care, etc. Other associated information includes where the individual visited clinics that offer reproductive health, their treatment of drug addiction, where political meetings they attended, and also the location of places of worship.
The American Civil Liberties Union has continually challenged the ability of police to locate someone without a warrant, asserting that such actions violate reasonable expectations of privacy in today’s digital environment.
The scale of data collection makes these privacy concerns even more urgent. When a single breach like Conduent’s can expose 25 million Americans’ personal information, including Texans’ most sensitive data, it’s clear that our digital footprints are not only being sold but also stolen, compounding the privacy crisis.
Although the U.S. Supreme Court has determined in prior rulings that police must obtain a warrant before tracking a person’s location over a prolonged time, that ruling expressly related to situations where law enforcement had directly tracked an individual, not where a business had purchased location tracking data from another company collected.
To close this loop in the law, Senator Ron Wyden has proposed legislation that would require law enforcement to obtain a warrant to purchase or obtain location-based data from any electronic device, as well as to require any company that sells location information to obtain the necessary legal authority.
What This Means for Ordinary Americans
For the average person, this news means that simply carrying a smartphone could make you trackable by federal agents without your knowledge. There is no notification requirement, so you would never know if your location history ended up in an FBI file.
While the Federal Communications Commission has taken measures requiring all telephone companies to obtain consent from their customers prior to sharing or releasing any location data, it still remains largely unregulated as far as the greater data broker industry is concerned.
Privacy advocates encourage US citizens to routinely check the permissions of installed apps, turn off location services for any apps that they do not need, and advocate for stricter privacy laws.
According to the FBI, they only purchase data to conduct legitimate investigations and have guidelines that govern how they protect the privacy of individuals. However, without judicial checks and balances or oversight over how this data is utilized, there is no independent verification of the validity of its usage or retention time-frames associated with it.
