Intelligence Agencies Adopt New Rules for Warrantless Purchase of Americans’ Data

The document says that the Intelligence Community’s current rules fully protect Americans’ civil liberties.
Intelligence Agencies Adopt New Rules for Warrantless Purchase of Americans’ Data
Director of National Intelligence Avril Haines testifies before the Senate Intelligence Committee in Washington, on March 10, 2022. Kevin Dietsch/Getty Images
Andrew Thornebrooke
Updated:
0:00

U.S. intelligence agencies are implementing a new framework for purchasing Americans’ personal data en masse but will still not require a warrant to do so.

The new guidelines are intended to address “novel issues related to privacy and civil liberties,” according to a May 9 statement released by the Office of the Director of National Intelligence.

“In keeping with my commitment to share as much as possible about the [Intelligence Community’s] activities, we are sharing this framework which provides effective governance for the IC’s [Intelligence Community’s] handling of [commercially available information] while also protecting Americans’ privacy and civil liberties,” said Avril Haines, director of national intelligence.

The Intelligence Community has come under fire multiple times over the past two decades for repeatedly abusing legal authority to spy on American citizens without a warrant. This includes findings that the FBI wiretapped and gathered personal information on more than 3.3 million Americans.

A key method used to do that has been the bulk purchase of personal information from so-called data brokers, who purchase identifiable information obtained from the web and sell it to the highest bidder.

The new guidance comes in response to public outcry regarding the National Security Agency’s use of data brokers to effectively circumvent Americans’ Fourth Amendment right to privacy by using commercial means to obtain private information without the warrants required to collect such data directly from service providers.

In a letter sent to Sen. Ron Wyden (D-Oregon) in December 2023, Ronald Moultrie, under secretary of defense, argued that the purchase of commercially available data could not be protected by the Fourth Amendment.

Mr. Moultrie also said the defense and intelligence communities had an obligation to gather the same data that potential adversaries had access to.

“I am not aware of any requirement in U.S. law or judicial opinion ... that DoD [Department of Defense] obtain a court order in order to acquire, access, or use information, such as CAI [commercially available information], that is equally available for purchase to foreign adversaries, U.S. companies, and private persons as it is to the U.S. Government,” he said.

The records purchased from data brokers by the Intelligence Community include IP addresses, metadata, and geolocation data, among other things, which can reveal what websites Americans visit, what apps they use, where they travel and when, and even their personal medical histories.

The defense and intelligence communities have come under increasing pressure to change the practice since January, when the Federal Trade Commission (FTC) issued a new order that data brokers would be prohibited from sharing or selling any sensitive location data.

That ruling was issued after an investigation found that many apps collecting these types of data did so illegally, without informing or obtaining consent from the individuals using the app to have their personal information sold to the government.

The FTC also announced that Americans must be told and agree to their data being sold to “government contractors for national security purposes” for the practice to be allowed.

However, the new guidance document does not halt the government’s continued collection of illegally sourced data from data brokers. The guidance document suggests that all current intelligence practices are “legal” and that the current rules regime “protects privacy and civil liberties.”

Instead, the guidance document lays out a baseline strategy for all intelligence agencies to better identify sensitive information, handle it more securely, and assess whether it can be better anonymized.

One rule in the new guidance is that the collection of sensitive commercially available information must be approved by the head of the individual intelligence elements, although those chiefs can simply delegate this responsibility with a written note.

The guidance document aims to establish a baseline of privacy and access protocols that will limit the ability of non-vetted personnel to gain access to the information collected.

Andrew Thornebrooke
Andrew Thornebrooke
National Security Correspondent
Andrew Thornebrooke is a national security correspondent for The Epoch Times covering China-related issues with a focus on defense, military affairs, and national security. He holds a master's in military history from Norwich University.
twitter