In order to function, they connect with communications networks and geolocation services, creating detailed maps of our daily lives. If you knew how to read them, you’d know someone’s favorite coffee shop, the person they’re dating, where they go to school or church, and more.
Would you want the government to have this information at its fingertips? Most of us wouldn’t — but that’s what’s happening. FBI Director Kash Patel recently admitted that the agency is buying up our personal information — including movement and location data — without a warrant.
If this concerns you, it should. It’s a clear violation of the Fourth Amendment. And it’s one reason why privacy and civil liberties advocates have been demanding Congress close a loophole that essentially allows the government to purchase our data without a warrant.
The Fourth Amendment exists to prevent the government from conducting unreasonable searches and seizures. So normally, if law enforcement officers want to access a person’s cell phone location data in the United States, they need a warrant. However, because Congress hasn’t updated laws to address technological advancements, government agencies can instead pay third party data brokers to access this data for them — no warrant needed.
Unfortunately, there’s nothing in the law that explicitly outlaws buying information from third parties. This loophole is the equivalent of the police handing your landlord an envelope of cash in order to enter your apartment without a warrant, with the police arguing that they didn’t technically break and enter.
There’s a good reason we don’t want the government to be able to buy endless amounts of information about its citizens. Besides being a massive invasion of privacy, it also endangers free speech and communities that are already subject to overpolicing.
In 2016, for instance, the ACLU found that law enforcement agencies were purchasing data to track protestors. In 2020, a Viceinvestigation revealed that the Pentagon was buying location data from Muslim prayer and dating apps to monitor Muslim communities.
The reversal of Roe v. Wade revealed the threat of state and local law enforcement agencies potentially buying cellphone data to prosecute people who seek reproductive care. And in 2023, my organization, the Project On Government Oversight (POGO), published an investigation warning that law enforcement could use digital data to enforce anti-trans laws.
This loophole has already been widely abused by federal agencies. The Department of Defense, Customs and Border Protection, Immigration and Customs Enforcement, Federal Bureau of Investigation, and local and state agencies across the country have all used this loophole to gather information about millions of Americans.
With the advent of Artificial Intelligence, the stakes are growing higher. In fact, the Pentagon recently broke off its relationship with AI firm Anthropic over the company’s refusal to drop safeguards against mass domestic surveillance.
With AI supercharging companies’ abilities to conduct invasive surveillance at an unprecedented scale — and the federal government itching to access these massive troves of data — Congress must finally stop these abuses.
The good news is that there’s support on both sides of the aisle for ensuring that the law keeps pace with our evolving information landscape. Both Republican and Democratic lawmakers have signaled their support for closing the data broker loophole and stopping illegal spying on Americans.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) — a law that authorizes government surveillance programs — is up for renewal in just a few weeks. There’s a reason why lawmakers designed this key surveillance authority to sunset: so Congress could consider what changes are necessary to keep pace with the ever-growing number of ways the federal government can access your personal data.
The current law isn’t cutting it. By finally closing the data broker loophole, lawmakers can protect our constitutional rights — and ensure that what you do remains your business, not the government’s.
