How Data Brokers and Phone Apps Are Helping Police Surveil Citizens without Warrants

OTI's Lauren Sarkesian and Spandana Singh wrote for Issues in Science and Technology about the practice of data brokers selling private information to law enforcement, circumventing 4th Amendment requirements and posing a major threat to individual privacy.

Though these data are ostensibly collected for commerce, recent reporting suggests that government law enforcement agencies are rapidly becoming major buyers. There are numerous recent examples involving location data alone. The online magazine and video channel Motherboard recently revealed that a data broker named X-mode has been compiling geolocation data from a popular Muslim prayer app (Muslim Pro) and a Muslim dating app (Muslim Mingle), then selling this extremely sensitive data to the US military through defense contractors. Likewise, according to the Wall Street Journal, the Department of Homeland Security, ICE, and Customs and Border Protection have been using a commercial database from Venntel Inc. to obtain user location data to detect undocumented immigrants and monitor cell phone activity along the border. This location information—combined with other surveillance tools—has been used to track, arrest, and even deport immigrants across the country. Reports also show that the US Internal Revenue Service has partnered with the data broker and software company Venntel to identify and monitor potential criminal suspects in money-laundering, cyber, drug, and organized crime cases.

These government purchases are beyond just concerning; they’re unconstitutional. In each of these examples, the federal government is making an end run around Supreme Court precedent set in Carpenter v. United States. As the court recognized in that 2018 case, tracking the movements of a specific individual over time is extremely invasive, and individuals have a reasonable expectation of privacy when it comes to the “all-encompassing record” of their whereabouts. For that reason, the court held that if a law enforcement agency wants to obtain location information on a particular individual for seven days or more, it must have a warrant. But in each of the above examples (of the military, DHS, and IRS) the government obtained large swaths of geolocation data without warrants, simply purchasing it through data brokers—skirting Fourth Amendment hurdles in the process.

US Senator Ron Wyden (D-OR) has called this government practice a “backdoor to throw the Fourth Amendment in the trash can.” And he’s not the only member of Congress paying attention to these egregious privacy violations. As policymakers delve deeper into understanding the ever-expanding surveillance ecosystem in the United States, they are beginning to pinpoint the especially problematic role that data brokers play.