Putting a price on privacy: Ending police data purchases

You can’t put a price on our constitution, but police these days can circumvent it, as long as they’re willing to pay. This is the absurd logic law enforcement agencies employ with data broker purchases, in which officers buy your cell phone location data from firms that offer it up to the highest bidder, and all without any court oversight. We know these data purchases have impacted tens of millions, but we actually have no way to know just whose data they’ve purchased.

And it’s not just police, agencies ranging from the U.S. Military to the Internal Revenue Service (IRS) have done the exact same thing. If officers want to take your computer or phone, they need a warrant, but if they pay a data broker for private, sensitive data, that’s fair game — at least for now. 

A new bill, The Fourth Amendment Is Not For Sale Act, recently introduced by Sen. Ron Wyden (D-Ore.) and a broad, bipartisan set of cosponsors could put an end to the practice. Under the bill, police would be barred from buying data they aren’t otherwise entitled to access. The bill could finally put a stop to the practice that is putting Americans at risk and making data brokers rich.

If you — as most people do — walk around with a smartphone, you are likely generating a trail of digital breadcrumbs in the form of geolocation data. For many apps, geolocation data is critical for function (think of navigating Google Maps or calling a Lyft ride), but for many others it is merely a matter of mining data and selling it to information brokers. This information can reveal sensitive movements, activities and interactions. If mapped out in patterns, it can open a window into the most intimate details of your life. 

Because of this, the Supreme Court ruled in 2018 that the government needs a warrant before it can obtain cell phone location records. But a serious loophole to this rule has emerged, and is being exploited.

Last year, U.S. Special Operations Command sparked international outrage when it was revealed that they had purchased geolocation data from Muslim prayer time and dating apps used around the world, including by large numbers of U.S. citizens. The most popular of those apps, Muslim Pro, was used by more than 98 million users on its own. However geolocation isn’t just being used for military operations, but rather to track crimes as mundane as tax evasion. The FBI, U.S. Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE) all use this tactic as well. 

Law enforcement agencies engaged in this practice are abusing a loophole to dodge the Supreme Court’s warrant rule. If police wanted to search someone’s apartment, they couldn’t skip getting a warrant by handing the landlord a wad of cash and asking for the keys. But that’s essentially what the government currently does with data brokers, using your tax dollars as a shortcut for access to the exact set of private information the law requires a warrant to seize. 

Unfortunately a dangerous trend has developed in how law enforcement exploits the fast sprint of technology to override the slow pace of court rulings and protections. When the Supreme Court ruled in 2012 (after six years of litigation) that police couldn’t track suspects by attaching GPS devices to cars without warrants, law enforcement moved onto demanding cell phone location records from phone companies. It took another six years to get the Supreme Court to require a warrant for this practice, so now the government has moved onto its new system of buying location records from data brokers.

We cannot afford to endlessly play whack-a-mole while individuals’ rights are infringed upon, and private activities and associations are stockpiled by the government. Congress needs to step in and establish strong safeguards that will prevent warrantless location tracking.

Luckily, it’s a straightforward bill to write. Rather than come up with a new review process or complex standard, Wyden’s bill simply holds law enforcement to the same standard when getting information from data brokers as when police compel us to hand it over directly. Also, the bill bans police from buying data that companies got through deception or malicious hacking, ending the loophole that has been exploited by surveillance firms like the controversial Clearview AI.

Wyden isn’t alone on the measure. He’s joined by more than a dozen colleagues from both sides of the aisle who think data brokers need to be reined in. But Wyden is also supported by a growing number of state lawmakers who are pushing similar local reforms. In New York, State Sen. Zellnor Myrie (D) and Assembly Member Dan Quart (D) introduced the first measure in the country to not only ban data broker sales to police, but to also ban geofence and keyword search warrants, court orders that allow police to seize data on thousands with a single court order.

Every year, our growing dependence on big tech makes it easier for police to track more and more of us with less and less effort. Left unchecked, this end-run around the Constitution will make a mockery of our Fourth Amendment, leaving it nothing more than a momento to a by-gone era when privacy still had meaning. It’s not too late to take action, but we must do so soon.

Albert Fox Cahn is the founder and executive director of the Surveillance Technology Oversight Project (S.T.O.P.), a New York–based civil rights and privacy group, and a fellow at Yale Law School’s Information Society Project and the Engelberg Center for Innovation Law & Policy at New York University School of Law. Follow him on Twitter @FoxCahn.

Jake Laperruque is senior counsel at the Constitution Project at the Project On Government Oversight (POGO), where he oversees the organization’s work on privacy, and surveillance issues. Follow him on Twitter @jakelaperruque.