Law Enforcement Reportedly Use Commercial Data for 'Warrantless' Surveillance on Possible Criminals

While commercially available data collected from device users have often helped law enforcement perform their duties, critics of the practice claim it amounts to an unconstitutional intrusion into people's private lives.

Several US federal agencies and state police departments have for years been using data collected by private companies and sold via brokers in the pursuit of criminals, illegal migrants and evidence – and unlike with regular surveillance, they did not need warrants or any justification to tap into the private lives of American residents, The Wall Street Journal has reported.

According to the newspaper, the Department of Homeland Security has been instructing its officers to use open-source phone-tracking tools to find illegal migrants. The FBI used to rely on obtained cell phone data in certain high-profile cases, but the process was made more difficult after the Supreme Court qualified the extraction of such data as a "search" requiring a warrant.

However, this decision did not mention third-party data brokers, which hoard private data such as movement, social media activity, home addresses and payment information collected by smartphones and other devices. As a result, the FBI was able to obtain and use information from 10 such brokers to identify people participating in the 6 January Capitol riot, although the Wall Street Journal said that the agency did not buy the information, but subpoenaed for it.

US Lawmakers Against 'Warrantless Surveillance'

The fact that government agencies and law enforcement can get US citizens' private data without needing a warrant has sparked debate on whether this could be classified as "warrantless surveillance" and whether the practice should be terminated. This debate has already led to the first legislative proposals to legally regulate the practice.

Democrat Senator Ron Wyden and Republican Senator Rand Paul have proposed a bill dubbed "The Fourth Amendment Is Not for Sale Act", which requires law enforcement and government agencies to secure a court order even if they do not issue subpoenas but simply buy private citizens' data from third-party sources. If passed, it would render the current practice of buying data brokers' databases practically useless to these government entities – it would be cheaper to just subpoena for it.

The proposed bill does have a loophole though, the WSJ pointed out – it can't stop private citizens or non-government entities from buying these databases and then providing information from them to government agencies to aid in their activities and investigations. Such use of databases is not novel either – the newspaper recalled the case of a 14-year-old girl who disappeared from her home in Missouri, but was later found in Kansas thanks to the efforts of local prosecutor Kevin Metcalf.

The prosecutor looked up unusual cell phone activity near the girl's house on the eve of her disappearance through a commercial service that helps to locate people's phones. Metcalf found one such anomalous cell phone user and handed over the data he obtained to the FBI, which passed it on to the police. If Wyden and Paul's bill gets adopted, people like Metcalf will still be able to give police and law enforcement warrantless access to private citizens' data in relevant cases.