(WASHINGTON) — The Center for Democracy & Technology (CDT) today released a report examining how law enforcement and intelligence agencies have been evading otherwise applicable legal requirements by purchasing Americans’ personal data from brokers.
The report, Legal Loopholes and Data for Dollars, finds that law enforcement and intelligence agencies have taken advantage of legal ambiguities to purchase data from brokers in an end-run around the Fourth Amendment of the Constitution and statutes such as the Electronic Communications Privacy Act (ECPA).
“There’s a loophole in ECPA allowing data brokers to obtain ‘non-content’ communications data, and then, because data brokers are not regulated by that law, to turn around and sell that information to government agencies,” says CDT Policy Director Samir Jain.
“Similarly, although the Supreme Court’s expansive language in Carpenter v. United States suggests that the government must also obtain a warrant in order to access sensitive personal information in contexts beyond just the cell site location information at issue in that case, government agencies have adopted narrow interpretations under which purchases of sensitive data from brokers are permitted without a warrant or other legal process.”
CDT reviewed the limited publicly available information documenting law enforcement and intelligence agency purchases of data from brokers. CDT found that data collected by brokers and sold to law enforcement and intelligence agencies includes sensitive information that can reveal details about individuals’ activities, associations, communications, finances, health, patterns of travel, sexual orientation, and other information.
Further, the use of such data by law enforcement may have disproportionately negative impacts on communities of color and immigrant communities. All of this generally happens without individual consent or even awareness. Indeed, brokers typically have no direct relationship with the people whose data they collect, analyze, and sell.
The report concludes with recommendations designed to close existing legal loopholes and provide greater transparency and accountability for government purchases of personal information from data brokers. They include calling on Congress to enact the Fourth Amendment is Not for Sale Act and a comprehensive consumer privacy law that includes regulation of data brokers.