Earlier this year, FBI Director Kash Patel sat before the Senate Intelligence Committee and confirmed what privacy watchdogs have long suspected.
Asked by Sen. Ron Wyden to commit to not purchasing Americans’ location data, Patel responded without flinching: “The FBI uses all tools to do our mission.” The bureau is buying detailed profiles of American citizens from their movements, habits, and associations from commercial data brokers. No warrant necessary, no judge, no probable cause—just a purchase order made by some low-level staffer.
What seems to be a clear violation of the 4th Amendment is a Washington problem, one that has been festering for years across administrations on both sides of the aisle.
The Department of Homeland Security has been purchasing data from brokers like Venntel and Babel Street as far back as 2017, spending millions of taxpayer dollars to track the movement of millions of Americans without a warrant. ICE has been using that data to identify and arrest immigrants. CPB used it to monitor activity along the southern border, and well beyond it. The NSA has confirmed the purchase of Americans’ internet browsing data. This shadow surveillance infrastructure was built quietly, across multiple administrations, and has continued to grow.
In 2018, the Supreme Court ruled in Carpenter v. United States that law enforcement needed a warrant to obtain your location data directly from your cellphone carrier. So rather than comply with the spirit of that ruling, agencies simply went on a shopping spree. Buy the same data from a third-party broker, sources from the weather app on your phone, the game your kids play, the navigation tool you use, and suddenly, no warrant is required.
Much of the data the government is buying flows through the invisible infrastructure of the digital advertising industry. In milliseconds, hundreds of companies receive a packet of your data: your precise GPS coordinates, your device ID, your browsing behavior, your inferred interests.
Long before the Internet, the 4th Amendment protected us from unreasonable government searches where people had a “reasonable expectation of privacy.” This generally encompassed most of our lifestyle, from our possessions, correspondence, relationships, associations, and quite a few more. But with nearly every transaction today built into a platform, software, or an app—all of which have mandatory user agreements that capture our personal data—many of the 4th Amendment’s protections are on their knees.
Massive data aggregators and analytics firms tap into these bitstreams, repackage the data, and sell it to anyone willing to pay, including federal agencies. The Justice Department acknowledged in court filings that it obtained location data from “ten data aggregation companies” to pursue American citizens. These types of companies, such as ClearScore, Credit Karma, and Socure, operate outside of regulatory scrutiny because they are structured in ways that place them beyond the reach of existing and proposed legal frameworks.
Free market conservatives rightly celebrate the commercial economy that makes data-driven innovation possible. But there is a critical distinction between a private company using your data to serve you a targeted advertisement and the federal government using it to build a surveillance file on you. Adherents on the right should be especially dubious on this issue, given how the Biden Administration pressured digital platforms to track, censor, delete, and report conservative content in secret.
The 4th Amendment explicitly proscribes the government from executing unreasonable searches, which characterized the British writs of assistance that helped spark the American Revolution. Buying your way around that protection, or routing around it through an ad tech intermediary, does not make it constitutional.
What makes this moment particularly dangerous is the additive of AI. Pairing this bulk commercial data with AI analysis creates the capacity for mass behavioral profiling of ordinary Americans on a scale no previous generation could have imagined. The same data that tells a marketer whether you have a pet can tell a federal official where you worship, where your kids go to school, or when your tee time is.
And if our adversaries purchase that data, it can and will be used to target and kill American military members. Indeed, it was reported that the Iranian drone strike in March that killed six U.S servicemembers in Kuwait may have used targeting data gathered from these same sources, raising concerns surrounding whether or not these massive data aggregators and brokers are being used in the tracking, targeting, and killing of United States troops.
The 4th Amendment was designed to constrain government power permanently, not selectively. Americans never agreed to forfeit their 4th Amendment rights to participate in the speed, efficiency, and convenience of our digital, data-driven economy. Two hundred and thirty-five years after it was ratified, the 4th Amendment and its requirement that searches into our private affairs require a warrant remain the law of the land.
Gerard Scimeca is chairman and general counsel for CASE, Consumer Action for a Strong Economy, a free-market-oriented consumer advocacy organization.
Views expressed by guest contributors to Issues & Insights are their own and don’t necessarily reflect the views of the I&I Editorial Board.
