The last couple of months have been rough on the FBI. The Twitter Files let the genie out of the bottle, and now more serious allegations against the agency just keep piling on.
If you think revelations of direct involvement in curtailing free speech on social networks coming out for the whole world to see were bad enough – wait until you hear that the FBI has now admitted to what we reported they were doing, by any reasonable interpretation, bypassing warrants, and just buying US location data.
And that could only have come from the super-murky world of data brokers, tightly and opaquely, coupled with Big Tech and the online ad industry.
On Wednesday, a US Senate hearing – conveyed to consider global threats – heard about a rather local one. At some point, FBI Director Christopher Wray was asked if the agency purchases US phone geolocation data.
Wray – once again, that's the FBI head – came back with an answer that “to his knowledge” – this is currently not the case, but previously, it had been.
Wray: “To my knowledge, we do not currently purchase commercial database information that includes location data derived from Internet advertising. I understand that we previously – as in the past – purchased some such information for a specific national security pilot project. But that's not been active for some time.”
Reports interpret his performance before during the hearing as “limiting” his repose in this context to data that companies gathered “specifically for advertising purposes.”
Make it make sense. Wray apparently tried to – by saying that the “purely” internet advertising data had been in the past bought in order to bolster an unspecified “national security pilot project.”
How about getting a warrant first? Not clear. The FBI chief said that the agency is relying on a “court-authorized” process – but reports seem to suggest that it's now anybody's guess if that turn of phrase means an actual warrant was involved.
There's no clarity at all – whether warrants signed by judges were used to obtain this data, nor why the FBI apparently decided to sunset the “pilot.”
Bureau-crats can try to talk their way out of the situation all congressional hearing long, but the fact remains that US Supreme Court's rulings like Carpenter v. The United States clearly shows that the government cannot gain access to historical location data without a warrant.
That's because such practices violate US citizens' protection against unwarranted searches, as defined in the Constitution's Fourth Amendment.
However, there are, as ever, loopholes – and clearly, whoever thinks they can get away with it goes for it.
In this case, writes Wired, citing privacy advocates, “the decision left open a glaring loophole that allows the government to simply purchase whatever it cannot otherwise legally obtain.”
The US privacy legislation situation is a mess, in other words.