On Government Surveillance Via Data Brokers

I listen to a number of podcasts that have at least a partial focus on digital privacy. Most notably, these include The Privacy, Security and OSINT Show and Surveillance Report, while Risky Business also tends to touch on such matters at times. I have also listened to others in the past, but they either have stopped running, or I found something about them off-putting. I also read the Firewalls Don't Stop Dragons newsletter. There's plenty more out there, too. The point isn't really whose stuff I consume, but more that I pay attention to the world of digital privacy.

One issue that seems to keep cropping up in recent times is that of governmental bodies purchasing information from data brokers, apparently in lieu of obtaining warrants to obtain the same information. I'm not sure exactly how well substantiated those claims are, but for the sake of current argument I'll accept that this indeed has been going on. I have a feeling that there have been reports in the media that various high-level figures have publicly stated this practice has indeed occurred. The general thinking is that the law enforcement or intelligence agency personnel would likely have found it difficult to justify adequately the need for a warrant, and so instead they have resorted to an alternative method available to them.

Every time such a news article comes out, there are typically comments along the lines of how terrible it is that law enforcement and intelligence agencies are circumventing restrictions on such measures—usually with mentions of the word "constitutional", since these articles are usually in reference to the US, and people perceive the purchase of such data as violating the Fourth Amendment to the US Constitution.¹ These comments aren't unjustified, since it does indeed appear that the authorities are circumventing legal restrictions, but they inevitably are silent on a related point: Why should the authorities be prevented from doing something that any random private individual with sufficient money can do, i.e., purchase information from data brokers?

To the best of my knowledge, there is never any suggestion that anybody else cannot go to these data brokers and make the same purchases, assuming that they have deep-enough pockets. Therein lies the real issue, to my mind: these data are collected and collated by data brokers, and made available to whoever can stomach the asking price. Whereas, it seems to me that the purpose of warrants is to enable authorities to exercise powers unavailable to the general public. To the best of my knowledge, there is no legal right for any random person on the street to enter someone's dwelling and search their property, and thus the relevant governmental bodies are required to go through the warrant process because they're exercising a power beyond normal rights. The trade-off to having those powers at all is the requirement that they are overseen through a (theoretically) independent review process. If I'm not mistaken, more than one person who was obviously guilty has gone free because the damning evidence against them was barred from court because it was technically seized without an appropriate warrant.²

It seems to me that, really, the issue at the heart of this matter is that the information is made available to anyone. In fact, the relevant governmental bodies are probably the last group I would want to see restricted from being able to use the data. That's not to say that I necessarily want them to be able to use it, either, but at least they are supposedly on our side (on paper, at least), and serving and protecting us. Any random private citizen, or indeed any number of morally-dubious businesses, still have access to that same information but vastly less prima facie responsibility to use it for purposes that won't cause harm to others. Whereas the law enforcement and intelligence bodies, at a minimum, pay lip service to doing things for the good of normal people, and are theoretically accountable to elected officials.³

Basically, what I'm saying is this: The real issue seems to me to be that these data are available to anyone with enough money, rather than that the government might use them. Let's get access to them restricted for other people, and then we can talk about whether governmental bodies (i.e., the only ones involved who are definitely on our side, at least on paper) should be able to get their hands on them. Or, better yet, how about we see to it that nobody gathers the data in the first place, and then the whole issue goes away entirely.

1. I'm unconvinced that the Fourth Amendment truly would prohibit such purchases, but as I am not well-versed in US constitutional law I won't further debate the matter here. ↩

2. Of course, there are certain other circumstances where the authorities can perform searches without first obtaining a warrant, but presumably in these "innocent-on-a-technicality" cases, those alternatives are not considered justified. ↩

3. There seems to be a perception amongst some parts of the general populace that the people who work for just about any governmental body sit around dreaming up new ways to oppress people (and waste money). I can confidently assure you, based on my experience working at Auckland Council, that this is most definitely not true about a great many people who work for some arms of the government. Not only do the vast majority of the people I came across have no interest in oppression, most of them genuinely want to do things to benefit the public. ↩