A Republican congressman last week highlighted an often-overlooked threat to the privacy of all Americans: the federal government’s practice of buying citizens’ private market data (PMD) from data brokers without a warrant. Representative Kelly Armstrong (R–ND) raised the issue before the House Subcommittee on Arming the Federal Government inaugural hearing.
“The federal government has realized the value of the vast amount of commercial consumer data freely available on the open market,” Armstrong said. “Combine [the amount of data available] with the advancement of technology like [artificial intelligence]facial recognition and more, which will enable collection, analysis and identification, and we are fast approaching a surveillance state with no guarantees other than our government’s promise not to abuse this enormous responsibility.”
Americans leave a trail of personal information as they use the Internet and online platforms, data collected by website cookies, social media platforms, mobile apps, and countless other digital pieces of information. This information is collected, processed and sold by data brokers. Private companies buy this data from brokers to shape their advertising strategies, but the data is also sold to the government.
The Centers for Disease Control and Prevention (CDC), for example, bought location data to monitor compliance with COVID restrictions (among other purposes), according to the documents it reviewed Vice. In 2017-2018, the Criminal Investigations Unit of the Internal Revenue Service (IRS) paid for access to location data to bolster enforcement efforts. After reviewing a database similar to the one accessed by the Tax Administration, The Wall Street Journal reported“In many cases, the data is precise enough to clearly identify the phone user’s home address, which can then be cross-checked with public databases showing real estate ownership records or rental address history.”
According to contemporary case law, the Fourth Amendment does not restrict the government from purchasing PMDs, since such transactions require neither search nor seizure. “The state can buy business documents without a warrant or any reason,” according to Orin Kerr, professor of law at the University of California, Berkeley. “The Fourth Amendment does not apply.” Furthermore, Kerr writes, when multiple parties have rights to the data — eg, the data broker and the user who generated the data — each can choose to disclose it to government officials.
Here it is necessary to understand how much data individuals continuously and voluntarily create. “In 2018, people created, recorded, copied, and consumed 33 zettabytes (ZB) of data — roughly 33 trillion gigabytes or 128,906,250,000 iPhone 12s maximum worth of information,” Klon Kitchen, senior fellow at the American Enterprise Institute, wrote in 2021. “This number jumped to 59 ZB in 2020 and is predicted to reach 175 ZB by 2025. In other words: people are currently producing 2.5 quintillion bytes of data every day. If you deposited 2.5 quintillion pennies, you could in order to cover the Earth it emerged five times.”
Data brokerage is estimated to be a $200 billion industry 2020. Acxiom, a prominent data broker, had data on 500 million consumers worldwide (with up to 3,000 data points on each individual). One broker received 3 billion “new records” each month, according to the Federal Trade Commission report as of 2014. In the years that followed, those numbers probably grew.
While Americans generally understand how to maintain personal privacy online, most are completely unaware that their daily online activities—eg. website visits—generate personal data that brokers can process and sell. Congress must codify additional Fourth Amendment restrictions on government actors, limiting their ability to purchase PMDs without strong judicial or other oversight.