An end-around the Fourth Amendment?

A recent news story that got my attention is that law enforcement and intelligence agencies are circumventing the Fourth Amendment by buying readily available personal data, and in large quantities. Even though in 2017 the Supreme Court held in Carpenter v. United States that cell-site data constituted a search (and, therefore, requires a warrant), agencies such as the Department of Homeland Security can buy massive amounts of such information from commercial providers and generally without much outside oversight or interference. The reasoning here is that a narrow reading of Carpenter would only apply to law enforcement and not to intelligence agencies.

H.R. 4639, called “The Fourth Amendment is Not for Sale Act”, died a procedural death a year or two ago somewhere between Congress and the Senate. It proposed to curtail law enforcement’s ability to buy readily available information that would otherwise be off limits to warrantless police use. In the meantime, it causes the problem of current and presumably many future criminal defendants will have to go through the brave, lengthy, expensive, and entirely uncertain process of needing to challenge it in the courts until it brings further clarity.

This brings serious legal conflict. The Fourth Amendment applies only to the government, not private actors, and it’s the private actors who are the primary source for collecting the data. While the Carpenter holding is that the government must have a warrant for the information, it brings an easy counterargument that the information isn’t private if anyone could buy it for the price the data collectors sell it for. A furtherance of the argument could be that the public lost its right to “be secure in their persons, houses, papers, and effects” when they allowed cookies on their device, subscribed to a cell phone provider, or took advantage of free wi-fi at the coffee shop.

The easiest and most obvious protection would be if law enforcement would simply stop getting the data in the absence of a warrant. Unlikely, given how easy it is to obtain.

The next not happening solution would be for data collectors to stop selling it to law enforcement. More unlikely, considering there apparently is good money in having customers to buy the product you sell.

Given that the United States is a full generation behind most peers when it comes to privacy protections, it may take a highly motivated Supreme Court to decide against this nuanced issue.