Intelligence Analysts Use U.S. Smartphone Location Data Without Warrants, Memo Says

WASHINGTON — A army arm of the intelligence neighborhood buys commercially obtainable databases containing location knowledge from smartphone apps and searches it for Americans’ previous actions with out a warrant, in accordance with an unclassified memo obtained by The New York Times.

Defense Intelligence Agency analysts have looked for the actions of Americans inside a business database in 5 investigations over the previous two and a half years, company officers disclosed in a memo they wrote for Senator Ron Wyden, Democrat of Oregon.

The disclosure sheds mild on an rising loophole in privateness regulation in the course of the digital age: In a landmark 2018 ruling often known as the Carpenter resolution, the Supreme Court held that the Constitution requires the government to obtain a warrant to compel phone companies to turn over location data about their customers. But the government can instead buy similar data from a broker — and does not believe it needs a warrant to do so.

The Wall Street Journal reported last year about law enforcement agencies using such data. In particular, it found, two agencies in the Department of Homeland Security — Immigration and Customs Enforcement, and Customs and Border Protection — have used the data in patrolling the border and investigating immigrants who were later arrested.

In October, BuzzFeed reported on the existence of a legal memo from the Department of Homeland Security opining that it was lawful for law enforcement agencies to buy and use smartphone location data without a warrant. The department’s inspector general has opened an internal review.

The military has also been known to sometimes use location data for intelligence purposes.

In November, Vice’s Motherboard tech blog reported that Muslim Pro, a Muslim prayer and Quran app, had sent its users’ location data to a broker called X-Mode that in turn sold it to defense contractors and the U.S. military. Muslim Pro then said it would stop sharing data with X-Mode, and Apple and Google said they would ban apps that use the company’s tracking software from phones running their mobile operating systems.

The new memo for Mr. Wyden, written in response to inquiries by a privacy and cybersecurity aide in his office, Chris Soghoian, adds to that emerging mosaic.

The Defense Intelligence Agency appears to be mainly buying and using location data for investigations about foreigners abroad; one of its main missions is detecting threats to American forces stationed around the world.

But, the memo said, the unidentified broker or brokers from which the government buys bulk smartphone location data does not separate American and foreign users. The Defense Intelligence Agency instead processes the data as it arrives to filter those records which appear to be on domestic soil and puts them in a separate database.

Agency analysts may only query that separate database of Americans’ data if they receive special approval, the memo said, adding, “Permission to query the U.S. device location data has been granted five times in the past two and a half years for authorized purposes.”

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