Police can use these surveillance tools to see the devices of people who attended a protest, follow them home, and target them for more surveillance, harassment, and retribution.
This statement was originally published on eff.org on 18 October 2023.
In the absence of comprehensive federal privacy legislation in the United States, the targeted advertising industry, fueled by personal information harvested from our cell phone applications, has run roughshod over our privacy. Worse, the boundaries between corporate surveillance and government surveillance are eroding. Unless your data is fully encrypted or stored locally by you, the government often can get it from a communications or computing company.
Traditionally, that required a court order. But increasingly, the government just buys it from data brokers who bought it from the adtech industry.
An investigation from the Wall Street Journal identified a company called Near Intelligence that purchased data about individuals and their devices from brokers who usually sell to advertisers. The company had contracts with government contractors that passed this data along to federal military and intelligence agencies. The company says it purchased data on over a billion devices. The government, in turn, can buy access to geolocation data on all those devices, when generally they’d have to show probable cause and get a warrant to get that same data.
Many smartphone application developers, to make a quick buck, are all too eager to sell your data to the highest bidder – and that often includes the government. Courts should hold that the Fourth Amendment requires police to get a warrant before tracking a person this way, but unfortunately, this corporate-government surveillance partnership has mostly evaded judicial review.
With the click of a mouse, police can use such surveillance tools to see the devices of people who attended a protest, follow them home to where they sleep, and target them for more surveillance, harassment, and retribution. Police can also track people whose devices have been inside an immigration attorney’s office, a reproductive health clinic, or a mental health facility. Police could easily use this tool to watch a secret rendezvous between a journalist and their whistleblowing source. Not to mention that law enforcement officials have often abused surveillance technologies for malicious personal reasons.
This type of surveillance also makes people who live and work in heavily-policed areas more vulnerable to falling under police suspicion. If you happened to be next door to a pizza shop that got robbed, or took a coffee break near graffiti, police could easily see your device located near the crime and target you for more surveillance.
News about Near Intelligence comes just a year after an EFF investigation revealed Fog Data Science, a previously unknown company that provides state and local law enforcement with easy and often warrantless access to the precise and continuous geolocation of hundreds of millions of unsuspecting Americans, collected through their smartphone apps and then aggregated by shadowy data brokers.
In light of the Journal’s recent expose, Congress must close this databroker loophole once and for all. The Fourth Amendment is Not For Sale Act is bipartisan, common sense law that would ban the U.S. government from purchasing data it would otherwise need a warrant to acquire. Moreover, with the invasive surveillance law Section 702 of the Foreign Intelligence Surveillance Act set to expire in December 2023, Congress has a chance to include a databroker limits in any bill that seeks to renew it.
Further, Congress and the states must enact comprehensive consumer data privacy legislation. If companies harvest less of our data, then there will be less data for the government to buy from those companies.
It’s up to us to keep agitating to prevent the government from continuing to buy information about us that it would otherwise need a warrant for.
