Intelligence Services Evade 4th Amendment by Paying for Your Data

The Office of the Director of National Intelligence warned that the practice threatens civil liberties, risks "mission creep," and could increase intelligence agencies' power.

A report from the Office of the Director of National Intelligence (ODNI), completed in January 2022 but just declassified last week, looks at the relationship between the intelligence community and private sector data brokers. As it turns out, it's worse than you may have thought.

The report examines commercially available information (CAI), broadly defined as "information that is available commercially to the general public." The category "can include credit histories, insurance claims, criminal records, employment histories, incomes, ethnicities, purchase histories, and interests." While the data are often anonymized, the ODNI report notes that it's often possible "to deanonymize and identify individuals, including U.S. persons."

"Today, in a way that far fewer Americans seem to understand, and even fewer of them can avoid," the report cautions, "CAI includes information on nearly everyone that is of a type and level of sensitivity that historically could have been obtained, if at all, only through targeted (and predicated) collection."

Intelligence agencies can't let an opportunity like that go to waste, of course. As such information "clearly provides intelligence value," the report notes, the intelligence community "currently acquires a large amount of CAI" by purchasing it. In many cases, this circumvents the Constitution: "Under Carpenter v. United States, acquisition of persistent location information (and perhaps other detailed information) concerning one person by law enforcement from communications providers is a Fourth Amendment 'search' that generally requires probable cause." But since "the same type of information on millions of Americans is openly for sale to the general public," the intelligence community treats it as publicly available and "can purchase it."

This isn't the first time we've seen this kind of behavior. Last year, the American Civil Liberties Union obtained thousands of records showing that Department of Homeland Security agencies were purchasing "huge volumes of people's cell phone location information" and "sidestepping our Fourth Amendment right against unreasonable government searches and seizures." And a 2016 inspector general report detailed the Drug Enforcement Administration's practice of paying confidential sources at private companies and in other government agencies for people's confidential information.

The ODNI report came at the request of Director of National Intelligence Avril Haines but took a while to be released. In March 2023, Sen. Ron Wyden (D–Ore.) asked Haines if her office would release the report, to which she replied, "I think it absolutely should." Yet it took a lawsuit from the Electronic Privacy Information Center before the report saw the light of day.

"This review shows the government's existing policies have failed to provide essential safeguards for Americans' privacy, or oversight of how agencies buy and use personal data," Wyden said after the report's release.

The fact that such information is available to anybody with a credit card may be concerning, but the fact that a government agency can access it with a requisition form is significantly more troubling. As the ODNI report notes, "Unfettered access to CAI increases [the intelligence community's] power in ways that may exceed our constitutional traditions or other societal expectations." The information also poses a risk of "mission creep," as information "collected for one purpose may be reused for other purposes."

For government agencies that want access to sensitive information, the answer should be a simple one: Come back with a warrant.