How would you feel if you knew the police were spying on you, not through their own surveillance, but through buying their data from other people? 

Most Americans are familiar with the First, Second and maybe Fifth Amendments to the Constitution, each of which guarantee certain rights to all American citizens – freedom of speech, the right to bear arms and the right against self-incrimination, respectively. Most, however, are not familiar with the remaining amendments, particularly the Fourth: this amendment provides for protection “against unreasonable searches and seizures” without a signed warrant from a judge.

As has been shown repeatedly by a long line of digital whistleblowers, warrantless mass surveillance by a smattering of three-letter organizations (NSA, CIA, FBI, etc.) is not fantasy, but reality. The Guardian’s leak that propelled Edward Snowden’s fame was, namely, a secret court ruling that Verizon must turn over millions of phone records to the FBI. Those records included phone numbers, call logs and durations, and other information that could eventually uniquely identify users. 

That was 2013, however, so times and methods have changed; now law enforcement agencies work with third parties to compile the data that they want. For instance, VICE has reported that an app “Muslim Pro”, downloaded by tens of millions of individuals, reports data to the U.S. military intelligence services through a third party. While the data is anonymous, VICE quoted their source as saying, “[the third party] could absolutely deanonymize a person.” Further, companies like Palantir offer the combination of public sector data and Palantir data with private law enforcement databases to track people with greater ease. The Los Angeles Police Department is one of their largest clients, and one community organizer remarked, “[Palantir] is not actually improving things… It’s expanding the power that police have.” Moves like these could inevitably lead to the continuation of over-policing and exploitation that studies have shown is endemic to low income black and brown communities.

In a rare stroke of technological literacy, a bipartisan group of senators has introduced the “The Fourth Amendment Is Not For Sale Act,” which would require a court order before law enforcement agencies purchase user data from third parties. For instance, the bill’s sponsors specifically targeted another firm, Clearview. AI, who “illicitly obtained photos to power a facial recognition service it sells to government agencies, which they can search without a court order.” 

The logic behind this move raises an important point: even for data that, as of now, can be obtained fully legally and remain apparently anonymous, new tools can essentially remove that individual protection nearly instantly. Technological capabilities for intrusions like that are cause for real concern, even for those who “have nothing to hide.” Deferring the impact of this law enforcement data market only works if an individual agrees with every aspect of the practices of their government. To put it another way, individuals who participate in civil disobedience, who protest against aggressive regimes, or whose religion or sexual orientation doesn’t align with their governments’ ideological disposition do have something legitimate to hide. Ultimately, those who implement technologies here in the United States must be mindful (and guard against) the worst-case deployment elsewhere. Considering the fact that many companies whose services are used worldwide happen to be based within the United States, our nation is in a unique position to be able to shape the use of individual data worldwide.

The United States could serve as a leader in the rights to individual privacy, to life and liberty as guaranteed under our Constitution, to individuals’ ownership of their data and obligations to use it ethically. Digital devices, now more than ever, are extensions of the human brain; they can (and do) carry more data than diaries, travel logs and rolls of film ever could. Unfortunately, however, we still live in a nation where the laws are more suited to the technology of the 18th, 19th and 20th centuries than the 21st. Lawmakers have an ethical obligation to ensure that those same moral individual protections guaranteed nearly 250 years ago extend to the modern day. 

The way that the public interacts with their technology has changed dramatically in the past few decades, and it remains truly vital that lawmakers keep up. For once, a bipartisan common-sense measure to both protect individuals and curtail problems endemic to the law enforcement system is up for serious debate. I sincerely hope that the necessity for the protection of the individual, and the moral imperative to use data equitably and fairly, does not remain lost on those in power in Washington.