FBI director leaves open the possibility that it's buying location data again
Kash Patel says the FBI uses all the tools it has to accomplish its mission - even if those tools are questionable
It's been three years since an FBI director admitted to purchasing the location data of Americans, potentially in violation of the Constitution. Here we go again.
FBI Director Kash Patel told the Senate Select Committee on Intelligence Wednesday that the FBI uses all the tools at its disposal to accomplish its mission – and that includes commercially available information from data brokers.
Senator Ron Wyden (D-OR) cited a statement from previous FBI director Christopher Wray under President Joe Biden, in which Wray promised, "To my knowledge, we do not currently purchase commercial database information that includes location data dervied from internet advertising." Wyden then asked Patel, "Is that the case still, and if so, can you commit this morning to not buying Americans' location data?"
Patel dodged the specific question about location data, but admitted, "We do purchase commercially available information that's consistent with the Constitution and the laws under the Electronic Communications Privacy Act, and it has led to some valuable intelligence for us to be utilized with our private partner sector."
"So you're saying that the agency will buy Americans' location data? I believe that's what you said in kind of 'intelligence lingo,'" Wyden charged in response. He added, "doing that without a warrant is an end run around the Fourth Amendment, it's particularly dangerous given the use of artificial intelligence to comb through massive amounts of private information."
The exchange recalled the first time an FBI director made such an admission back in 2023, when Wray told the very same privacy-concerned Senator Wyden that the FBI wasn't buying location data any longer, but that it had at some point.
Wyden seems to think it's an active practice at the FBI again, although the FBI did not confirm this to The Register. Referring us to Patel's statement during the hearing as quoted above, the FBI pointed out the Director made no mention of location data. That's indisputable. But neither Patel nor the FBI has outright denied it either. We put the question to the FBI spox directly and will update this article if we hear back.
The data broker loophole
Wyden and colleagues on both sides of the aisle have been sounding the alarm about the federal government's purchase of Americans' location data from data brokers for some time, and it's not like they're just raising a stink over nothing: The FBI's actions, as admitted to by Wray and Patel, are only allowed on very narrow grounds.
In 2018, the US Supreme Court extended the US Constitution's Fourth Amendment's freedom from unreasonable search and seizure to include location records harvested from cellular data. That ostensibly meant that, in all but individually argued emergency cases, the government needed a warrant to collect location data.
But if that same data is harvested by data brokers, then the government could just buy it. Even back in 2023, Wray made it clear that the FBI was no longer buying "commercial database information that includes location data derived from internet advertising." Note the wording about internet advertising. That meant, according to Wray, that the FBI wasn't in possession of any data generated by a cellular carrier, which it would've needed a warrant to collect.
Wyden, along with a bipartisan trio of his Senate colleagues, introduced a bill last week that, along with reauthorizing the controversial FISA Section 702 with a number of reforms, would also close the data broker loophole, requiring federal agencies to get a warrant to buy records from them. ®