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The Department of Homeland Security is preparing to spend $125 million on access to a vast commercial database containing personal information on millions of Americans—including names, addresses, Social Security numbers, geolocation data, and social media activity. Officials argue they don’t need a warrant because they aren’t seizing the information—they’re buying it.
That distinction rests on one of the most consequential—and increasingly controversial—legal doctrines in modern constitutional law: the third-party doctrine. Built on Supreme Court decisions from the 1970s, it holds that information voluntarily shared with banks, phone companies, and other private entities loses Fourth Amendment protection.
In this commentary, Jeffery Wernick examines how that doctrine evolved, why it no longer reflects the realities of modern digital life, and how the rise of data brokers has created what critics call a constitutional loophole—allowing the government to purchase information it could not legally compel without judicial approval.
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