Many government agencies get around the Fourth Amendment’s requirement for a probable cause warrant by simply buying our personal information from data brokers. Now there is a move for government’s biggest agency – the Department of Defense – to come clean on what kinds of our personal information is on its shopping list.
Every American should care about the sale of our data because it is, in effect, selling parts of our lives and those of people we love.
Your digital portrait tells us about your race, ethnicity, religion, gender, sexual orientation, and how much money you make. It tells us if you’ve gotten divorced or engaged. It tells us if you are pregnant. It tells us if you have diabetes or take a pharmaceutical to combat depression. It reveals your politics and intimate facts about your family. Our digital portraits effortlessly assemble in an instant more than a private detective could discover in a week. It is hard to imagine a more intrusive and personal portfolio.
One set of facts being sold in our digital portfolios by data brokers is our location history: where we’ve been with a cellphone in our pocket. The U.S. Supreme Court held in Carpenter (2018) that government acquisition of cell-site records is a Fourth Amendment search, usually requiring a warrant.
That is why we were surprised to learn in January, 2021, that the lawyers for the Defense Intelligence Agency (DIA) within DOD had come to the conclusion that the agency may legally purchase Americans’ smartphone location histories – in bulk – from brokers, who in turn extract that information from our smartphone apps. But DIA’s lawyers say it need not conform to Carpenter because it is not seizing our data.
It is merely buying it. See the distinction? Neither do we.
Now there is an organized push by civil liberties groups to insert into the federal budget a requirement that the DIA report to the public and congressional defense committees a topline report on what kinds of records it collects. The report should include the numbers of domestic phone calls, domestic text messages, and domestic internet metadata, including Americans’ online search histories collected by DIA.
The idea that the federal government can defeat the Fourth Amendment by simply opening its wallet is preposterous. At the very least, Congress should shine a bright light on the extent of this practice by DIA and other agencies.