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.
Editor’s Note: At a moment when the once vaunted model of responsible journalism is overwhelmingly the play thing of self-serving billionaires and their corporate scribes, alternatives of integrity are desperately needed, and ScheerPost is one of them. Please support our independent journalism by contributing to our online donation platform, Network for Good, or send a check to our new PO Box. We can’t thank you enough, and promise to keep bringing you this kind of vital news.
You can also make a donation to our PayPal or subscribe to our Patreon.
Please share this story and help us grow our network!
