Government Misuse of Data Rightly Worries Americans

Federal agencies frequently buy their way around the Fourth Amendment.

In news from the world of "what took you so long?" it seems that Americans are concerned about how governments and tech companies use the information they gather. Much current discussion is about the potential dangers of the data hoovered up by social media companies, and while people tell pollsters that worries them, they have no faith that regulators will hold private companies to account. Well, of course not; Americans know government is a big part of the problem and that officials are all too eager to misuse private information.

Rising Concern Over Government Use of Data

"Americans – particularly Republicans – have grown more concerned about how the government uses their data," Pew Research noted on October 18 of a survey of 5,101 participants. "The share who say they are worried about government use of people's data has increased from 64% in 2019 to 71% today."

Americans are actually more concerned (81 percent) about how private companies use their data. But the big jump in worry over government abuse of sensitive information is remarkable and may explain why "71% have little to no trust that these tech leaders will be held accountable by the government for data missteps."

Let's be clear that the concern is well-founded. No matter the occasional congressional press release, government officials like it when private companies scoop up data. That's because the information can then be purchased in what officials insist is a legitimate end-run around the Fourth Amendment and other privacy protections. News on that front came just days before Pew released its survey results.

Federal Agencies Frequently Buy Private Data

"Technology embedded in our phones and computers to serve up ads can also end up serving government surveillance," Byron Tau, Andrew Mollica, Patience Haggin, and Dustin Volz reported for The Wall Street Journal on October 13. "Information from mobile-phone apps and advertising networks paints a richly detailed portrait of the online activities of billions of devices. The logs and technical information generate valuable cybersecurity data that governments around the world are eager to obtain. When combined with classified data in government hands, it can yield an even more detailed picture of an individual's behaviors both online and in the real world."

The Journal reporters traced the flow of data through a company called Near Intelligence that acquires information from brokers and advertising agencies, which acquire it from apps. The data is then passed on to government contractors and from them to intelligence agencies.

Near Intelligence's general counsel allegedly warned the company's CEO: "We sell geolocation data for which we do not have consent to do so…we sell/share device ID data for which we do not have consent to do so [and] we sell data outside the EU for which we do not have consent to do so." He added that data from users in the European Union was delivered to the U.S. federal government twice every day.

This is far from the first time that red flags have been raised over the purchase of private data by government agencies. Reason has covered the issue for several years as technology and abuses evolve.

In June, Joe Lancaster wrote up a report from the Office of the Director of National Intelligence on the acquisition by intelligence agencies of commercially available information (CAI—of course there's an acronym) including "credit histories, insurance claims, criminal records, employment histories, incomes, ethnicities, purchase histories, and interests." The report observed that, while businesses sell anonymized data, government agencies can usually identify individuals by comparing the information to other records.

That point was made by a 2018 story in The New York Times quoting industry experts to the effect that "it would be relatively simple to figure out individual identities" from the theoretically anonymized tracking data accumulated by phone apps. Patterns of life are better than fingerprints when it comes to connecting the information acquired by our electronic devices to our names.

The specific data brokers that sell information change over time as they go out of business or shift their practices in response to public exposure. What doesn't change is that there's always somebody selling sensitive information about our movements and habits to government agencies.

End Run Around the Fourth Amendment

Government officials cultivate relationships with commercial brokers to evade search-and-seizure protections. In Carpenter v. United States (2018), the U.S. Supreme Court found that "given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection." The justices ruled that warrants are required to gain access to cellphone location data.

But that's if government agents go directly to phone companies. By going through data brokers, the government is "buying its way around the core protections of the Fourth Amendment" in the words of a 2022 ACLU report on the practice.

In response, privacy-minded federal legislators have proposed The Fourth Amendment Is Not For Sale Act several years running. It's intended to curtail government purchase of data from brokers and to require a court order for sensitive information. The latest version is sitting in Congress, gathering dust.

Several states have actually passed legislation to limit law-enforcement access to private location data. Unfortunately, that doesn't touch abuses at the federal level.

The challenge, of course, is that it's difficult to convince government officials to limit their own power.

Concerned, But Not About the Police?

Ironically, despite public concern over government use of data, Pew also found that "roughly three-quarters of Americans say it's very or somewhat acceptable for law enforcement to obtain footage from cameras people install at their residences during a criminal investigation or use information from cellphone towers to track where someone is." Smaller majorities "say it is acceptable to break the passcode on a user's phone (54%) or require third parties to turn over users' private chats, messages or calls (55%) during a criminal investigation."

You can rely on people to be inconsistent if nothing else.

As mentioned above, privacy concerns over government data use are rising among Republicans and GOP-leaning independents, from 63 percent in 2019 to 77 percent now. About two-thirds of Democrats and Democrat-leaners share those concerns, though the number has remained steady. That may reflect the ongoing discussion over politicization of the FBI and other federal agencies, which has those on the right especially worried.

Government agencies are still eagerly buying their way around privacy protections. But Americans' growing concerns may boost efforts to reform the practice. Eventually.