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In Washington, D.C., they call it the “data broker loophole.” This is the legal maneuver by which a dozen federal agencies, ranging from the IRS to the FBI, Department of Homeland Security, and the Pentagon, purchase records of Americans’ personal digital activity from third-party data brokers. What is this loophole? With a straight face, the government claims that while the Fourth Amendment forbids “unreasonable searches and seizures” of our personal effects, nowhere does the Constitution forbid the government from opening its wallet and simply buying our data. And to be fair, we all routinely click the “agree” box that allow these transfers when scanning social media platform’s long and hard-to-read terms of service. This is still disingenuous at best. The digital trails we leave online – our communications, the identities of our friends and associations, our personal financial, romantic and health secrets, not to mention our search histories – reveal information that can be more intimate than a diary. Americans are noticing this violation of their privacy. A recent Ipsos poll finds that roughly 90 percent of Americans respond that it is not acceptable for private data brokers to sell our personal data to the government. Congress is certain to soon turn to legislation that will require the government to obtain, as the Constitution requires, a probable cause warrant before inspecting our data. In the meantime, if you want more background on the nature, extent, and abuses of the data broker loophole, here are some useful resources: 1. What Are Data Brokers, And How Do They Work? (Proton) / June 20, 2025 A detailed primer on data brokers and the risks posed to consumers, including the sale of such data to government agencies without warrants. 2. “Anyone Can Buy Data Tracking U.S. Soldiers and Spies to Nuclear Vaults and Brothels in Germany,” (Wired), Nov. 19, 2024. Despite what has to be the most clickable headline in recent history, Wired presents a deep and substantive investigative report that reveals the extent to which the sale of personal data collected by personal devices is putting Americans in uniform and national security at risk.
3. “A Continuing Pattern of Government Surveillance of U.S Citizens,” (Americans for Prosperity: James Czerniawski) See p. 4, April 8, 2025. Eighty percent of Americans agree that the government should “obtain warrants before purchasing location information, internet records, and other sensitive data about people in the United States from data brokers.” And yet federal agencies routinely buy our data, threatening our most basic constitutional rights. 4. “The Intelligence Community Plan to Make It Easier to Buy All Your Data,” (Project for Privacy and Surveillance Accountability), June 2, 2025. The Office of the Director of National Intelligence has instituted a plan to make sure Americans’ private data is no longer decentralized, fragmented, siloed, overpriced, and limited – literally everything you might hope your personal data would actually be. 5. Montana Becomes First State to Close the Law Enforcement Data Broker Loophole (EFF) / May 14, 2025 Montana is the first state to close the data broker loophole, preventing law enforcement from buying personal digital data – like location, communications, and biometrics – without a warrant. Under SB 282, such data can only be accessed with a warrant, user consent, or an investigative subpoena. The law goes into effect 10/1/2025. 6. Federal Government Circumventing Fourth Amendment by Buying Data From Data Brokers (Criminal Legal News) / April 15, 2025 Summarizing much earlier reporting from Reason and WSJ, the focus is on efforts to dodge Carpenter v. United States (2018). Federal agencies routinely purchase commercial cellphone data – which tracks individuals’ movements – without warrants, skirting Carpenter, which requires a warrant for such data.
7. “FISA and the Second Amendment: Gunowners Beware,” (Reason[A1] ), Feb. 1, 2024. If you’re a gun owner and use Apple products, you should be deeply concerned about the ability of federal law enforcement agencies to get a lot of data on you – without ever having to get a warrant. 8. EPIC White Paper Finds Gaps in State and Federal Privacy Law Coverage of Data Brokers (EPIC) /July 29, 2025 This report argues that data brokers exploit legal loopholes in the Fair Credit Reporting Act (FCRA) and Gramm-Leach-Bliley Act (GLBA) to avoid compliance with modern privacy laws.
9. Government Purchases of Private Data (Wake Forest Law Review, 59:1) / April 2024 This paper questions the widespread assumption that the Fourth Amendment can never apply to commercial purchases. Yet police officers can generally purchase an item available to the public without constitutional restriction.
10. Federal Acquisition of Commercially Available Information (POGO) / Dec. 16, 2024 The Project On Government Oversight (POGO) warns that federal agencies' unchecked use of commercially available information (CAI), including sensitive personal data purchased from brokers, circumvents Fourth Amendment protections. POGO urges the Office of Management and Budget to end warrantless surveillance practices, increase transparency, and implement strong regulations. The comment highlights risks to privacy and civil liberties, especially for marginalized communities, and documents past abuses by agencies like DHS, ICE, and the FBI. Finally, if you are interested in solutions, start with The Fourth Amendment Is Not For Sale Act, which passed the House of Representatives last year. If enacted, this measure would require the government to obtain a warrant before buying Americans’ personal information. PPSA looks forward to this or some similar legislation being introduced in the 119th Congress. [A1]This links to a Cato article, which does not contain any links to a Reason article, so I don't know if he embedded the wrong link or wrote the wrong text. The text itself is from Cato. Comments are closed.
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