A large industry of data brokers collects vast amounts of information from cell phone apps, web browsers and ad-tech systems, then sells that data to advertisers — and to federal and local law enforcement. Privacy advocates say agencies are using purchases of bulk data, including cell-phone location records, to sidestep warrant requirements and reconstruct intimate details of Americans’ lives.
Congress will likely debate reauthorizing Section 702 of the Foreign Intelligence Surveillance Act — set to expire April 20 — and privacy groups see that process as a rare chance to close the “data broker loophole.” After a 2015 change to law barred federal agencies from collecting Americans’ data in bulk, some agencies reportedly began buying similar datasets instead. A coalition of roughly 130 civil-society organizations urged Congress to address the issue in FISA 702 reauthorization, warning the loophole enables “unprecedented expansion of warrantless mass surveillance” and could “supercharge AI-powered surveillance.”
At a recent Senate hearing, Sen. Ron Wyden asked FBI Director Kash Patel whether the bureau would commit not to buy Americans’ location data. Patel declined, saying the FBI “uses all tools” and purchases “commercially available information” consistent with law. An FBI spokesperson declined to specify which commercial data the agency buys. In 2023, former FBI Director Christopher Wray had said the agency had backed away from using commercial databases that include location data derived from internet advertising.
Location datasets sold by brokers are often not directly linked to names, but analysts and tools can link device location traces to homes, workplaces and routines. Bill Budington of the Electronic Frontier Foundation noted such tools can reveal where a device spends nights, where it goes during work hours and other sensitive patterns.
Artificial intelligence magnifies these risks. Anthropic CEO Dario Amodei warned that purchased records could allow AI to assemble “a comprehensive picture of any person’s life—automatically and at massive scale.” That concern has contributed to tensions between private AI companies and the Department of Defense over acceptable uses of AI tech.
Federal agencies known to have purchased or used brokered location information include the FBI, the Department of Defense and Immigration and Customs Enforcement. ICE has contracted for tools that use location data and has sought industry feedback on “commercial Big Data and Ad Tech” for investigations. Reporting indicates ICE signed a contract for Penlink’s Webloc, which can track mobile-phone movements and identify phones that visited specified locations. Penlink told NPR that vendors filter out “sensitive locations” like hospitals, schools and religious institutions and that the company complies with laws and updates practices as laws change. ICE did not respond to NPR about how it uses phone-tracking tech.
Privacy advocates say government purchases of broker data “contribute to an ever-expanding infrastructure of private sector surveillance” and risk creating a dystopian surveillance society. They argue purchases flout the spirit, and potentially the letter, of the 2015 USA Freedom Act, which aimed to end bulk collection of Americans’ data after the Snowden disclosures about NSA phone-record collection.
Advocates point to Supreme Court precedent. In Carpenter v. United States (2018), the Court held that law enforcement generally needs a warrant to obtain a person’s historical cell-site location information from phone companies. Civil-liberties experts argue it makes little sense for police to be able to buy the same or more revealing location records from brokers without a warrant, especially since supposedly anonymized broker data can often be reidentified.
Lawmakers from across the spectrum have proposed reforms. Rep. Warren Davidson (R-Ohio) and Sen. Mike Lee (R-Utah), working with Democrats Rep. Zoe Lofgren and Sen. Ron Wyden, put forward bipartisan bills that would end the data broker loophole and address related surveillance practices, including so-called “backdoor searches” of Americans’ communications incidentally collected under foreign surveillance authorities.
Davidson told NPR the issue “doesn’t break on party lines,” and called the practice “a broad dragnet sweep under normal warrant requirements.” He argued that while broader privacy legislation is needed, closing the broker loophole is an urgent fix because “governments are buying their way around the Fourth Amendment.”
Despite bipartisan proposals, tying surveillance reforms to FISA reauthorization faces strong opposition. The White House and House Speaker Mike Johnson have pushed for a “clean” reauthorization without changes, and some Democrats favor that approach to avoid a lapse of the law. Johnson delayed a House vote amid intraparty divisions.
Courts have not yet ruled on whether government purchases of bulk brokered data violate the Fourth Amendment, leaving the practice in a legal gray area. Privacy advocates say the practice undermines the USA Freedom Act’s ban on bulk collection and conflicts with Carpenter. Jake Laperruque of the Center for Democracy and Technology said Congress did not intend to permit bulk collection simply through procurement: “It wasn’t, you know, ‘do bulk collection, but also pay taxpayer money for it.’ It was ‘don’t do bulk collection.'”
AI’s rapid advancement heightens the stakes. Laperruque warned that combining massive datasets with AI tools enables pattern-finding at scales human analysts can’t match, opening a new Pandora’s box of surveillance capabilities. Jeramie D. Scott of the Electronic Privacy Information Center said warrantless government purchases are building “an ever-expanding infrastructure of private sector surveillance” that could lead to authoritarian-scale monitoring.
With Section 702 reauthorization imminent, privacy and civil-liberties groups view this moment as likely the best opportunity this year to secure legal limits on government purchases of brokered data and to rein in the merger of data-broker records with AI-driven analysis.