Federal Government Circumventing Fourth Amendment by Buying Data From Data Brokers
by Anthony W. Accurso
Federal law enforcement agencies have been paying private companies for the information they collect on users—information for which agents would need a warrant to collect themselves.
The U.S. Supreme Court ruled in Carpenter v. United States, 585 U.S. 296 (2018), that the government must obtain a warrant to track people’s extended movements through their cellphone data. This ruling was based on the Fourth Amendment’s protection against unreasonable searches unless the government can show an individual probably is or was engaged in criminal activity.
However, in the era of surveillance capitalism, most companies now collect as much data as possible on their users and customers, hoping to monetize it. For tech companies like Google and Meta (Facebook), this data enables “targeted” advertising. Other companies simply sell their collected data to data brokers.
These brokers profit by selling access to law enforcement agencies. For example, in 2017 and 2018, “U.S. Immigration and Customs Enforcement (ICE) paid more than $1 million for access to cellphone geolocation databases in an attempt to detect undocumented immigrants entering the country.” The Wall Street Journal reported that ICE used this information to identify and arrest migrants.
During the same period, the Internal Revenue Service Criminal Investigation unit (“IRS-CI”) “purchased access to a commercial database containing geolocation data from millions of Americans’ cellphones,” which it claimed to have used for “significant money laundering, cyber, drug, and organized crime cases.” The IRS CI terminated the contract after the data failed to yield useful leads.
Reason.com reported that during the COVID-19 pandemic, “the Centers for Disease Control and Prevention spent $420,000 on location data to track compliance with movement restrictions, such as curfews, as well as patterns of those visiting K-12 schools.”
The Defense Intelligence Agency (“DIA”) admitted in a January 2021 memo that it purchases “commercially available geolocation metadata aggregated from smartphones.” The memo further stipulated that “DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes.”
This narrow interpretation of Carpenter lies at the root of the problem, as multiple agencies have used it to justify buying data they would otherwise need a warrant to collect. Unless Congress passes legislation to prevent it—or the Supreme Court provides more specific guidance—these agencies will continue to flout the intent of the Fourth Amendment.
Source: reason.com; The Wall Street Journal
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