 The U.S. Supreme Court’s landmark decision in Chatrie v. United States settled one important question while raising another that Congress can no longer ignore. If the government needs a warrant to compel Google to disclose Americans’ location records, why should it be able to sidestep that requirement by buying the same records from a data broker? Chatrie’s Principles In a 6-3 opinion, the Court held that Americans retain a reasonable expectation of privacy in detailed cellphone location records, even when those records are held by a third party such as Google. Police therefore conduct a Fourth Amendment search when they compel disclosure of that information through a geofence warrant. In writing the majority opinion, Justice Elena Kagan recognized a simple truth about modern life: carrying a smartphone inevitably generates an extraordinarily revealing record of where we go, whom we visit, who our romantic partners are, which churches we attend, what political rallies we join, and countless other intimate details. Americans do not surrender their constitutional privacy merely because technology companies necessarily store that information. But if that is true, an obvious question follows: Why allow the federal government to simply purchase the very same information from a commercial data broker? The Data Broker Loophole Today, at least a dozen federal agencies have acknowledged buying commercially available personal data. These include the FBI, the Drug Enforcement Administration, the IRS, the Department of Homeland Security, the Department of Defense, and elements of the intelligence community. Instead of obtaining a warrant approved by a judge, these agencies often obtain access simply by writing a check. This practice has become known as the “data broker loophole,” a gaping privacy vulnerability that turns the Fourth Amendment inside out. Suppose police could not constitutionally enter your home without a warrant, but could legally pay your neighbor to climb through the window and photograph every room. Few Americans would believe the Constitution permits such an end-run around judicial oversight. Yet that is effectively what has developed in the digital age. Commercial data brokers aggregate astonishing quantities of personal information collected by smartphone apps, advertisers, financial transactions, connected vehicles, and countless online services. These databases can map a person’s movements, habits, religious observance, medical concerns, political associations, and relationships with extraordinary precision. Agencies can often acquire such data without ever demonstrating probable cause to a court. Now, Chatrie pokes holes through the government’s thin rationale by holding that highly revealing location histories remain constitutionally protected even when maintained by private companies. If the Constitution bars the government from compelling disclosure without a warrant, Congress should not permit agencies to obtain the same information merely because a private intermediary has placed it on the market. The bipartisan Fourth Amendment Is Not for Sale Act would close this loophole by requiring government agencies to obtain a warrant before acquiring sensitive commercially available data. The core provisions of that legislation should be incorporated into Section 702 of the Foreign Intelligence Surveillance Act when it comes up for reauthorization. The Supreme Court now recognizes that Americans possess a reasonable expectation of privacy in the digital trails their smartphones inevitably create. Congress should finish the job by closing the data-broker loophole when it reauthorizes Section 702. Comments are closed.
|
Categories
All
|
RSS Feed