The Feds Are Buying Their Way Around the 4th Amendment

Government agencies have paid to access huge amounts of Americans' data.

A Republican congressman last week highlighted an oft-overlooked threat to the privacy of all Americans: The federal government's practice of purchasing citizens' private market data (PMD) from data brokers without a warrant. Rep. Kelly Armstrong (R–N.D.) raised the issue at the House Select Subcommittee on the Weaponization of the Federal Government's inaugural hearing. 

"The federal government has realized the value of the massive amounts of commercial consumer data that is freely available on the open market," Armstrong said. "Combine [the amount of data available] with the advance in technology like [artificial intelligence], facial recognition, and more, that will allow aggregation, analysis, and identification, and we are fast approaching a surveillance state with no assurances other than the promises of our government that it will not abuse this tremendous responsibility."

Americans leave a trail of personal data while using the internet and online platforms, data that are collected by website cookies, social media platforms, mobile applications, and myriad other digital information hoovers. This information is collected, processed, and sold by data brokers. Private companies buy this data from brokers in order to shape their advertising strategies, but the data are also sold to the government.

The Centers for Disease Control and Prevention (CDC), for instance, purchased location data to monitor compliance with COVID restrictions (among other purposes), according to documents reviewed by Vice. In 2017–18, the Internal Revenue Service (IRS) Criminal Investigation unit paid to access location data to bolster enforcement efforts. After reviewing a database similar to the one accessed by the IRS, The Wall Street Journal reported, "In many cases, the data is precise enough to clearly identify the home address of the phone's user, which can then be cross-checked against public databases showing property ownership records or rental address history."

Under modern case law, the Fourth Amendment does not constrain the government's purchasing of PMD, as such transactions require neither search nor seizure. "The government can buy business records without a warrant or any cause," according to Orin Kerr, a law professor at the University of California, Berkeley. "The Fourth Amendment does not apply." Furthermore, Kerr writes, when multiple parties have claim to data—e.g., the data broker and the user who generated the data—either one may choose to disclose it to government officials.

An understanding of just how much data individuals continuously and voluntarily create is necessary here. "In 2018, people created, captured, copied, and consumed 33 zettabytes (ZB) of data—approximately 33 trillion gigabytes or 128,906,250,000 maxed-out iPhone 12s' worth of information," Klon Kitchen, a senior fellow at the American Enterprise Institute, wrote in 2021. "This number jumped to 59 ZB in 2020 and is predicted to hit 175 ZB by 2025. Put another way: Humans currently produce 2.5 quintillion bytes of data every day. If you laid flat 2.5 quintillion pennies, you could cover the earth's surface five times." 

Data brokerage was estimated to be a $200 billion industry in 2020. Acxiom, a prominent data broker, had data from 500 million consumers worldwide (with up to 3,000 data points on each individual). One broker obtained 3 billion "new records" every month, according to a Federal Trade Commission report from 2014. In the intervening years, these figures have likely ballooned.

While Americans generally understand how to maintain personal privacy in the meatspace, most are entirely unaware that their daily online activities—e.g., visiting a website—generate personal data that could be processed and sold by brokers. Congress must codify extra–Fourth Amendment restrictions on government actors, curtailing their ability to purchase PMD without robust judicial or other supervision.