The subject of cell phones and geolocation data was brought up by several senators at a Joint Committee hearing concerning the 6 January Capitol protests. At the hearing, Mike Lee (R-Utah) and Josh Hawley (R-Missouri) both had pointed questions for FBI Director Christopher Wray.
Lee told Wray that he was concerned citizens were being “inexplicably” contacted by FBI agents who knew of their presence in the district “with no other explanation, perhaps, other than the use of geolocation data.”
“Are you geolocating people, through the FBI, based on where they were on January?” Lee asked Wray.
“I think there may be some instances in which geolocation has been an investigative tool, but I can’t speak to any specific situation,” Wray responded to Lee’s question.
“What’s your basis for authority?” Lee asked. “Are you using national security letters?”
“I don’t believe in any instance we are using national security letters for investigation of the Capitol.”
The FBI has aggressively pursued investigations and charges against 6 January Capitol protesters, making over 350 arrests so far in connection with the event. Many believe the FBI’s actions have crossed a line into unconstitutional criminalization of political protest.
The FBI is also drawing scrutiny over how it is abusing authorities to hunt down, identify, and apprehend those who may have been at the protest.
During the Senate hearing, Lee queried Wray about possible FISA court involvement, which Wray denied. He also asked whether the FBI was using warrants “predicated on probable cause.”
“We certainly have executed a number of warrants in the course of the investigation of January,” Wray said. “All of our investigative work in response to the Capitol [protest] has been under the legal authorities that we have in consultation with the [DOJ] and the prosecutors.”
Senator Hawley asked the FBI Director if his position on the use of geolocation data is that he doesn’t know whether the bureau has “scooped up” geolocation data and metadata cell phone records from cell phone towers. “Do you not know, or are you saying maybe it has or maybe it hasn’t? Tell me what you know about this.”
“So when it comes to geolocation data specifically—again, not in a specific instance, but just even the use of geolocation data—I would not be surprised to learn—but I do not know for a fact—that we were using geolocation data under any situation with connection with the investigation of [January ],” answered Wray. “But again, we do use geolocation data under different authorities and specific instances.”
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