Your Privacy is for Sale

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The Data Broker Loophole: What You Need to Know

I’ll hazard a guess that you’re reading this newsletter on your smartphone right now. 310 million people in the U.S. own a smartphone. That’s nine out of every ten people in the total population. What you do on your phone — your texts and calls, your posts on social media, your online search history, your purchases, and where you take your phone — paints a rather intimate portrait of who you are.

To many, smartphones are a treasure trove for what they reveal about your private life. In fact, there’s a multi-billion-dollar market for this information, helmed by data brokers, who collect and compile data from the apps and cookies on your phone to sell to customers including businesses, advertisers, scam artists, and foreign intelligence agencies.

It’s bad enough that there’s a business built around the gross invasion of your privacy. But there’s a buyer in this market who makes the matter all the worse: the government. In recent years, local, state, and federal law enforcement agencies have turned to buying data about Americans directly from data brokers, in a fantastic overreach of their power and an existential threat to our right to privacy.

But wait — what about warrants?

Typically, if a government agency wants access to your property — which includes your data — they need to have a warrant based on “probable cause” (as in, a reasonable belief that you may have broken the law) from a judge. This is a protection guaranteed to us under the Fourth Amendment of the U.S. Constitution, and it is the basis of our inexplicit right to privacy.

But rapid developments in technology have brought with them new and unforeseen ways for government agencies to search and seize your property online. Unfortunately, legislation has been slow to keep up, leaving our digital privacy woefully under-protected. For example, it was only in 2018 through the Supreme Court’s Carpenter v. United States decision that the government was barred from demanding cellphone location history data from telecom companies without a warrant — a practice that had been exploited for years prior to the ruling.

The data broker market is by no means new, and the government has been dabbling in it for at least 20 years. But Congress has yet to legislate to protect our privacy from these tools, creating a glaring loophole that empowers law enforcement agencies to sidestep the Constitution and buy their way around our privacy protections. As we’ve written in the past, this is a practice akin to “giving a landlord a handful of cash to access someone’s apartment instead of getting a search warrant for it.”

Who is buying this data?

In recent years, we’ve learned that the Department of Defense, Customs and Border Protection, Immigration and Customs Enforcement, and the Federal Bureau of Investigation have all abused the data broker loophole, alongside local and state agencies across the country.

And what are they doing with it?

The data that government agencies buy can be abused toward all sorts of nefarious ends. In 2016, the ACLU of California found that law enforcement agencies were purchasing data to track Black Lives Matter protestors. In 2020, a Vice investigation revealed that the Pentagon was buying location data from Muslim prayer and dating apps to monitor Muslim communities. The reversal of Roe v. Wade revealed the very real threat of state and local law enforcement agencies buying cellphone data to prosecute people who seek abortions. And just last year, we published an investigation on how law enforcement could use digital data to enforce anti-trans laws.

What can you do about this?

April 19, 2024, is the deadline for Congress to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, a provision we’ve discussed previously in The Bridge. The “domestic spying tool” should not be reauthorized without serious reforms. Thankfully, there’s bipartisan support on the Hill for efforts to refashion the provision and rein in warrantless surveillance. The coming weeks pose a ripe opportunity to both end backdoor searches and close the data broker loophole, providing long overdue safeguards for our digital privacy. It’s all systems go at POGO to persuade legislators to do the right thing here. Stay tuned to your inbox in the coming weeks for how you can get involved in our campaign to close the data broker loophole.