Congress may soon tell us what price the Pentagon is putting on our constitutional rights, i.e. how much it is paying to circumvent the Fourth Amendment and buy information about Americans.
Just a few weeks ago, the House made that a possibility when it added a 2022 military budget requirement that the Department of Defense disclose any purchases of commercially available data on citizens’ smartphones and web browsing.
Although it sounds far-fetched, it happens more than you might think.
The FBI, Department of Homeland Security, Immigration and Customs Enforcement, and other law enforcement agencies to buy information about Americans – ranging from Internet activity to GPS locations – without the need for a warrant or having to disclose that behavior.
In June 2020, for example, the company MobileWalla secretly monitored people at Black Lives Matter protests and used their phone location data to identify specific things about them. All of this is made possible by the data brokerage industry, where companies collect, buy, and sell data about people with virtually no regulation and where the Fourth Amendment does not apply.
This kind of unregulated surveillance means it’s time for Congress to do more. Many agencies and organizations (beyond the Department of Defense) buy data from Americans without their knowledge, without disclosing it and without any type of warrant or meaningful oversight. It is time for the public to better understand what was going on and for regulators to end this practice.
Data brokerage is a multi-billion dollar industry (indeed, some of the biggest players like Acxiom and Oracle rake in millions and Billions only one year), but most people have never heard of these companies in their life. These private entities can legally collect, infer, analyze, sell, license and share your age, race, gender and sexual orientation, political preferences and beliefs, location and GPS positions-and even health information re Alzheimer’s, pregnancy, HIV/AIDSas well as other extremely sensitive data points.
“The Fourth Amendment places many restrictions on how and when the government can compel companies to provide data, but none on how they can choose to sell it.”
Law enforcement agencies have spent millions of dollars to access commercially available information about Americans, taking advantage of the opportunism of data brokers and exploiting loopholes in constitutional law and privacy protections.
Immigration and Customs Enforcement (ICE), local police and others bought data for literally Track people locations without a warrant, without strong oversight and without these people knowing about it. Other players also buy this data, including health insurance companies the profiling of people, criminal crooks deceive old people and abusive people hunt victims of domestic and marital violence.
Policymakers have paid less attention to data brokers and many other data collectors, at least in recent years, choosing instead to focus on companies that directly collect our information, especially tech giants like Google. , Facebook, Amazon, Twitter and TikTok. Yet the dangers of putting the Constitution up for sale continue to grow, and the industry remains incredibly opaque to regulators and the public.
Congress needs to copy the transparency requirements it added to the military budget and apply them across the federal government – disclose how federal agencies buy data on Americans without a warrant, what kind of data it is and what the government has done with it.
At the same time, members of Congress must support the “Fourth Amendment Act is not for sale”, a bipartisan bill supported by 20 senators, which would close the loophole that law enforcement and intelligence agencies use to buy data on Americans and monitor them without constraints.
But the need for action extends far beyond the Beltway. Public information is not just for the highest federal bidder, it is also bought by state and local police. But states don’t have to wait for Congress to take the first step. Already, New York has a pending invoice this would significantly restrict the power of the police to purchase information. At a minimum, states must notify the public when public agencies use our tax money to buy our data.
The Biden administration can also act.
Currently, state and local police departments receive billions in federal funds with few strings attached. But the Justice Department can require local agencies to disclose whenever they use public funds to purchase private data. Similarly, the White House could require all federal agencies to inform the public when this strategy is used in an investigation, or tell them to stop doing so altogether.
The sad truth is that none of this should be necessary. The only reason legislatures and the executive need to act now is because the courts have failed to keep pace with change in the past.
Advances in technology have dramatically changed how and how much of our data is stored. These changes have allowed large corporations to keep a perpetual log of our every move. And under our Constitution, the courts have ruled that everything was to be gained.
The Fourth Amendment places many restrictions on how and when the government can compel companies to provide data, but none on how they can choose to sell it. This analog logic makes no sense in the digital age, providing us with protections against research that ignores the way modern surveillance is conducted.
This status quo is simply not sustainable. A country where the police can buy intimate information about anyone at any time is not compatible with a democracy.
Congress should move forward with new disclosure requirements, but if its members don’t act, the Biden administration must. Lawmakers across the country must also take steps to protect our data from this type of abuse.
In time, the courts will be able to catch up and breathe new life into the constitutional provisions that once protected our privacy. But until that day comes, all other branches of government must act.