Closing the Data Broker Loophole: FISA Reauthorization and Privacy Protections
The data broker industry purchases electronic information from cell phone apps and web browsers and sells it to advertisers and government agencies. This data includes bulk cell phone location data, which can reveal personal details about individuals without a warrant. Congress is expected to address the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, which is set to expire soon. Some civil society organizations are urging Congress to close the data broker loophole in FISA 702 reauthorization to prevent warrantless mass surveillance and potential misuse of AI-powered surveillance tools.
Federal agencies are prohibited from collecting data on U.S. citizens in bulk, but some have found ways to circumvent this restriction by purchasing data from brokers. The FBI, for example, has declined to commit to not buying Americans' location data, citing the value of commercially available information for intelligence purposes. Brokers provide location data that can be used to track individuals' movements, even though the data is typically unlinked to specific device owners. AI technology can enhance the power of this data, creating comprehensive profiles of individuals automatically and at a massive scale.
Government agencies like the FBI, Department of Defense, and Immigration and Customs Enforcement have contracts for tools that rely on cell phone location information sourced from data brokers. ICE, in particular, is using tools like facial recognition and license plate data to surveil immigrants targeted for deportation, as well as individuals recording federal agents and protesters. The use of phone tracking technology without a warrant is raising concerns among privacy advocates, who see it as contributing to a dystopian surveillance society.
The upcoming FISA reauthorization debate presents an opportunity to close the data broker loophole and implement meaningful privacy protections. Bipartisan efforts are underway to reform FISA and end the practice of federal agencies purchasing bulk data from brokers. However, there is opposition to tying reforms to FISA reauthorization, with some advocating for a clean reauthorization without changes. Privacy advocates argue that buying bulk data from brokers circumvents the Fourth Amendment and goes against laws that prohibit federal agencies from collecting bulk data on Americans.
The practice of federal agencies purchasing data from brokers raises legal and ethical questions, as it allows for the collection of sensitive information without a warrant. Privacy advocates point to Supreme Court precedent and argue that law enforcement should not be able to purchase data they would normally need a warrant for. The combination of AI technology with data purchased from brokers poses new challenges and risks, as it enables unprecedented analysis of data patterns on a massive scale. Addressing these issues is crucial to protecting individuals' privacy and upholding constitutional rights.