Law enforcement and intelligence agencies may be buying your sensitive and personal information.

Across the country, companies that offer online services collect, analyze, and sell user data. Companies called “data brokers” then aggregate and sell this data commercially to buyers; today, these buyers increasingly include law enforcement and intelligence agencies.

Law enforcement and intelligence agencies spend millions of dollars for brokers to compile databases, which often contain very sensitive and very personal information on individuals. This data has the very real potential to reveal details about an individual — including their activities, associations, beliefs, communications, finances, health, patterns of travel, physical characteristics, and sexual orientation — that show what the Supreme Court has referred to as “the privacies of life.”

The Center for Democracy & Technology (CDT) recently released a report, Legal Loopholes and Data for Dollars: How Law Enforcement and Intelligence Agencies Are Buying Your Data from Brokers, seeking to shed light on the nature and scale of the data broker to federal law enforcement and intelligence pipeline. We explore how law enforcement and intelligence agencies are relying on such purchases in situations where they should be required to obtain a warrant, or go through other formal legal processes to compel disclosure of the data.

When procuring data from brokers, government purchase orders and contracts frequently use terms such as “publicly available” and “open-source”. While these traditionally mean that virtually anyone has access to the information — think of social media posts that are knowingly made available to the public — these contracts include information that is not available to the public or any other consumer, and is actually collected specifically for a given agency.

These law enforcement practices have serious privacy implications, especially for communities of color and immigrant communities. Typically, government agencies seeking access to the personal electronic data of Americans, such as granular location information and biometric data, must comply with a legal process to obtain that data. That process can be mandated by the Constitution (the Fourth Amendment’s warrant and probable cause requirement) or by statute (such as the federal Electronic Communications Privacy Act [ECPA], or various state laws). Unfortunately, there are ways around this, one of which being that ECPA effectively contains a loophole allowing law enforcement to acquire communications data commercially from data brokers and evade otherwise applicable requirements that they must use legal process to obtain data directly from service providers.

Among the dozen or so recommendations for protecting privacy rights that we outline in our Legal Loopholes and Data for Dollars report, one of the most pressing is the closure of this ECPA loophole. The Fourth Amendment is Not for Sale Act, a bill introduced in Congress with bipartisan support, would close the loophole by amending ECPA to extend its protections to any “intermediary service provider that delivers, stores, or processes communications” of a “covered person” under the Act.

The recommendations outlined in CDT’s report would not solve all of the problems present in the data broker industry, but they would go a long way towards ensuring that government agencies can only access Americans’ personal data when they meet appropriate legal standards.

CDT is committed to supporting and advocating for the digital rights of all. Partners like you have been indispensable in this work. If you are not yet engaged and want to learn more, please reply to this email to join the conversation. You can help put civil rights and civil liberties at the center of the digital age.

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