Instead of obtaining a warrant, the NSA would like to keep buying your data

An effort by United States lawmakers to prevent government agencies from domestically tracking citizens without a search warrant is facing opposition internally from one of its largest intelligence services.

Republican and Democratic aides familiar with ongoing defense-spending negotiations in Congress say officials at the National Security Agency (NSA) have approached lawmakers charged with its oversight about opposing an amendment that would prevent it from paying companies for location data instead of obtaining a warrant in court.

Introduced by US representatives Warren Davidson and Sara Jacobs, the amendment, first reported by WIRED, would prohibit US military agencies from “purchasing data that would otherwise require a warrant, court order, or subpoena” to obtain. The ban would cover more than half of the US intelligence community, including the NSA, the Defense Intelligence Agency, and the newly formed National Space Intelligence Center, among others.

The House approved the amendment in a floor vote over a week ago during its annual consideration of the National Defense Authorization Act, a “must-pass” bill outlining how the Pentagon will spend next year’s $886 billion budget. Negotiations over which policies will be included in the Senate’s version of the bill are ongoing.

In a separate but related push last week, members of the House Judiciary Committee voted unanimously to advance legislation that would extend similar restrictions against the purchase of Americans’ data across all sectors of government, including state and local law enforcement. Known as the “Fourth Amendment Is Not For Sale Act,” the bill will soon be reintroduced in the Senate as well by one of its original 2021 authors, Ron Wyden, the senator’s office confirmed.

“Americans of all political stripes know their Constitutional rights shouldn’t disappear in the digital age," Wyden says, adding that there is a “deep well of support” for enshrining protections against commercial data grabs by the government “into black-letter law.”

The extent to which the NSA in particular uses data brokers to obtain location and web-browsing data is unclear, though the agency has previously acknowledged using data from “commercial” sources in connection with cyber defense. Regardless, the NSA’s lawyers have authored extensive guidelines for acquiring commercially available data, particularly when it belongs to US companies or individuals. Some of the rules prescribed by the agency’s lawyers remain classified.

The NSA did not respond to multiple requests for comment.

A government report declassified by the Office of the Director of National Intelligence last month revealed that US intelligence agencies were avoiding judicial review by purchasing a “large amount” of “sensitive and intimate information” about Americans, including data that can be used to trace people’s whereabouts over extended periods of time. The sensitivity of the data is such that “in the wrong hands,” the report says, it could be used to “facilitate blackmail,” among other undesirable outcomes. The report also acknowledges that some of the data being procured is protected under the US Constitution’s Fourth Amendment, meaning the courts have ruled that government should be required to convince a judge the data is linked to an actual crime.

The US Supreme Court has previously ordered the government to obtain search warrants before seeking information that may “chronicle a person’s past movements through the record of his cell phone signals.” In the landmark Carpenter v. United States decision, the court found that advancements in wireless technology had effectively outpaced people’s ability to reasonably appreciate the extent to which their private lives are exposed.