Several associations and American elected officials are pushing to amend an intelligence law that has allowed the United States to collect data from millions of people by exploiting a legal loophole that allows agencies like the FBI to purchase personal information from citizens through “data brokers.”
“Your data is everywhere. The government is buying it without a warrant.” With this striking headline, National Public Radio (NPR) revisited a controversial topic in the United States. A few days ago, nearly 130 civil society organizations signed a letter urging Congress to close the loophole related to “data brokers” in the renewal of section 702 of the Foreign Intelligence Surveillance Act (FISA).
They denounce an “unprecedented expansion of warrantless mass surveillance” capable of collecting large-scale private information within the American population. Initially adopted in 2008, section 702 authorizes American intelligence agencies, mainly the NSA and to a certain extent the FBI, to collect, without individual warrants, communications of individuals deemed relevant for foreign intelligence (terrorism, cyberattacks, espionage, etc.). This means the scope is broad. In April 2024, former President Joe Biden extended this provision for two years.
The topic became sensitive again, especially since the FBI director testified before the Senate. On Wednesday, March 18, Kash Patel declared that the agency was purchasing information that could be used to track people’s movements and location history. This is the first official confirmation that the FBI actively buys personal data, whereas in 2023, former director Christopher Wray had only admitted that the agency had previously bought geolocation data but “without systematic use” at the time.
Parallel data markets
Since 2018, the US Supreme Court has required law enforcement to obtain a warrant to access individuals’ geolocation data via mobile phone providers. But Politico notes that data brokers offer an alternative: they directly buy this information, thus bypassing the warrant requirement.
NPR also points out that a whole sector of brokers collects vast amounts of electronic information from mobile apps and web browsers, which they then resell to advertisers for targeted advertising. These massive data (including geolocation) are also sold to police services and federal agencies, exposing intimate information about American citizens without a warrant.
Consumers often underestimate the extent of this collection, facilitated by apps, digital platforms, connected devices, as well as AI and data cross-referencing. Privacy policies are often opaque, and opt-out options can be misleading. While some states have started regulating and investigating to protect consumers, there is no comprehensive federal framework governing the initial collection, analysis, and sale of data.
The University of Duke, in North Carolina, has shown that the “data brokerage ecosystem represents a multi-billion-dollar sector.” A comprehensive 2023 study revealed that it is extremely easy to buy sensitive data, including on individuals in strategic positions, such as military personnel or government members.
The information concerns active-duty American military personnel, their families, and veterans, and includes health, financial, or religious data, “for only 0.12 dollars per record.” Poorly regulated and often “outside any legal framework,” these practices expose military personnel and their families to risks of profiling, blackmail, or manipulation by malicious foreign actors.
Strong criticism
For privacy advocates, Congress has a rare opportunity in the coming weeks to close this loophole in the fourth amendment. Several lawmakers also want to put an end to these practices. On March 13, Senators Ron Wyden (Democrat) and Mike Lee (Republican) presented the “Government Surveillance Reform Act,” a bill that would require federal law enforcement and intelligence agencies to obtain a warrant to acquire personal information about American citizens.
“Inacting without a warrant is a scandalous circumvention of the fourth amendment, and is particularly dangerous given the use of artificial intelligence to sift through massive amounts of private information,” said Oregon Senator Ron Wyden.
In an open letter, viewed by BFM Tech, 17 attorneys general also called on Congress to ban the use of artificial intelligence by federal agencies for mass surveillance of citizens. They warned against programs that violate constitutional rights, threaten civil liberties, and undermine trust in democratic institutions. Despite several bipartisan-supported bills in recent years, no reform has yet been adopted.
The debate on reauthorizing the FISA law is “likely the only chance for Congress this year to vote for meaningful privacy protections,” added Sean Vitka, executive director of Demand Progress, a rights advocacy group that helped bring together an “unusual” coalition supporting federal surveillance reforms with support from opposing political camps. It remains to be seen how far the fight will go.
