Congress must close this Fourth Amendment loophole

The Fourth Amendment secures American citizens (and their property) from warrantless searches and seizures. However, the federal government has devised a scheme to dodge those protections and to acquire extensive and deeply personal data on individuals. This requires neither search nor seizure — nor a warrant. Instead, federal officials simply purchase private market data (PMD), the digital snail trail that electronics users generate constantly and that data brokers hawk to public and private buyers. This information, when cross-referenced with public records, allows the government to infer the intimate details of Americans lives in furtherance of investigations and other operations.

The Bill of Rights, for all its wisdom, provides but a partial enumeration of a citizen’s natural rights. Moreover, its particulars, in several instances, only imperfectly protect those enumerated rights. Given the inherent limitations of language and written law, no code or constitution can anticipate every threat that might rise to menace individual liberty and order. Moreover, technological, and other societal, innovations create novel challenges that require equally novel statutory solutions.

The digital age has threatened the Fourth Amendment’s ability to fully protect Americans’ rights to privacy and security.To fortify these rights, the House Judiciary Committee recently advanced the Fourth Amendment Is Not For Sale Act. The bill would forbid federal law enforcement and intelligence entities to purchase from brokers several categories of user data, including a significant amount of location data. It would further require federal officials to obtain a warrant before demanding access to brokers’ datasets.

A brief review of the status quo makes clear the pressing need for such legislation.

Devices collect PMD from even the most mundane consumer-electronics usage — like opening an application or website visits — at an astounding rate and volume. Klon Kitchen, a senior fellow at the American Enterprise Institute, wrote that “In 2018, people created, captured, copied, and consumed 33 zettabytes (ZB) of data—approximately 33 trillion gigabytes or 128,906,250,000 maxed-out iPhone 12s’ worth of information.” He also stated that “ This number jumped to 59 ZB in 2020 and is predicted to hit 175 ZB by 2025. Put another way: Humans currently produce 2.5 quintillion bytes of data every day. If you laid flat 2.5 quintillion pennies, you could cover the earth’s surface five times.”

This commodity has proved highly marketable. One estimate in 2020 valued the data-retail business at $200 billion. The broker Acxiom maintained the data of 500 million consumers, with as many as 3,000 datapoints per individual. Venntel (another broker) told the Department of Homeland Security (DHS) it “collects more than 15 billion location points from over 250 million cell phones and other mobile devices every day,” according to records obtained by the ACLU.

The federal government has gorged itself on PMD. Besides Venntel’s provision of location data to DHS, the Center for Disease Control acquired location data to check compliance with COVID-19 regulations. The IRS did so to facilitate its own enforcement efforts. A recently declassified report from the Office of the Director of National Intelligence (DNI) notes that the FBI, Department of Defense, U.S. Navy, and other federal entities have contracted (or considered contracting) with brokers.

Readily purchasable data “includes information on nearly everyone that is of a type and level of sensitivity that historically could have been obtained, if at all, only through targeted (and predicated) collection,” the DNI report remarks. 

Even putatively anonymized data—particularly location information—raises grave privacy risks. Law enforcement or intelligence officials often can easily deduce an individual’s identity and personal affiliations from their movement patterns supplemented by publicly available data. For example, The New York Times, for a 2019 report, “obtained a dataset with more than 50 billion location pings from the phones of more than 12 million people.” From this trove, the paper soon identified a Secret Service agent’s smartphone. The Timesnoted that “it took only minutes…to deanonymize location data and track the whereabouts of President Trump.” Location datasets can further suggest tracked individuals’ interpersonal relationships, religious and political affiliations, medical conditions and much more.

The digital industrial revolution has fundamentally altered commerce, communication, socialization, trade, manufacturing, civil society and nearly every other aspect of life. This requires Congress to bolster the Bill of Rights’ protections to ensure the continuance of America’s unending journey towards a more perfect union.

David B. McGarry is a policy analyst at the Taxpayers Protection Alliance.