The disclosure sheds light on an emerging loophole in privacy law during the digital age: In a landmark 2018 ruling known as the Carpenter decision, 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. “D.I.A. does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes,” the agency memo said.
Mr. Wyden has made clear that he intends to propose legislation to add safeguards for Americans’ privacy in connection with commercially available location data. In a Senate speech this week, he denounced circumstances “in which the government, instead of getting an order, just goes out and purchases the private records of Americans from these sleazy and unregulated commercial data brokers who are simply above the law.” He called the practice unacceptable and an intrusion on constitutional privacy rights. “The Fourth Amendment is not for sale,” he said.