The Fourth Amendment to the U.S. Constitution is not long—only 54 words, in total. But its core premise can be summed up with a simple phrase: Come back with a warrant.
The Fourth Amendment protects people “against unreasonable searches and seizures.” Any law enforcement operative hoping to search or seize your “persons, houses, papers, [or] effects” must get a warrant, showing “probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
But in recent years, as Americans began storing larger portions of their personal information online, governments started buying this data, circumventing the Fourth Amendment’s guarantees of protection. This week, Montana became the first state to restrict the practice.
In 2018, the U.S. Supreme Court affirmed in Carpenter v. United States that the government cannot search a suspect’s cell phone without a warrant.
“A person does not surrender all Fourth Amendment protection by venturing into the public sphere,” including by storing personal information on their phone, Chief Justice John Roberts wrote for the majority. “Although such records are generated for commercial purposes,” that does not “negate” one’s “anticipation of privacy.”
But in the years since, governments have gotten around that pesky constitutional prohibition by simply buying people’s data, with the public’s money.
Companies have access to reams of information about their users, and they often sell that data—anonymized—to firms called data brokers, who then bundle it and sell it to other companies, like advertisers. “A large portion of data brokerage is used for identity verification or fraud prevention,” Paul Boutin wrote in Newsweek. “Much of it is used for traditional marketing.”
But governments got in on the action, too. Federal agencies like the IRS and Immigration and Customs Enforcement spent millions of dollars buying access to data that would otherwise require a warrant. In 2022, the Associated Press reported that police departments across the country had purchased and used “an obscure cellphone tracking tool, at times without search warrants, that gives them the power to follow people’s movements months back in time.”
Hellbound and Down 