Montana Passes Law Prohibiting Law Enforcement from Buying Private Data
As we have previously covered, privacy advocates have voiced their concerns in recent years over the vast amount of data that is being collected by private and government actors, some of which they argue violates an individual’s Fourth Amendment rights against warrantless and unreasonable searches and seizures. One such way law enforcement engages in this practice is through the so-called “data broker loophole” in which government and/or law enforcement agencies simply purchase personal data against an individual or group in their investigations without a warrant from private data brokers, a practice that is largely unregulated and can amass a large amount of commercial data on any individual or group of people (such as location and phone habits). Recently, Montana became the first state to restrict this practice, with the bill stating that, “a government entity may not obtain the stored data of an electronic device without a search warrant issued by a court upon a finding of probable cause,” with exceptions for when an individual gives permission, for incarcerated individuals, and “an emergency involving danger, death, or serious physical injury.” “Montana has done something that many states and the United States Congress have debated but failed to do: it has just enacted the first attempt to close the dreaded, invasive, unconstitutional, but easily fixed ‘data broker loophole,'” wrote Matthew Guariglia, senior policy analyst at the Electronic Frontier Foundation, in celebration of the bill being signed into law. While it is a good step, the practice is still legal in the other 49 states and for federal investigators, many of whom have spent millions of dollars on data that otherwise would require a warrant in recent years. The Office of the Department of National Intelligence reported back in 2022 that the intelligence community had already purchased large amounts of personal data which included, “information on nearly everyone that is of a type and level of sensitivity that historically could have been obtained, if at all, only through targeted (and predicated) collection” and through various methods and means they were able to, “deanonymize and identify individuals, including U.S. persons” with the data. Such practices may be challenged in a court of law in the future, particularly for any criminal charges that rely on such data in their investigations, but in the meantime the practice will continue for law enforcement agencies at every level of government, particularly as law enforcement would almost certainly say that any practice later deemed unconstitutional should be covered by the “good faith exception” that allows certain evidence illegally obtained to nonetheless be admitted into courts. The sooner those challenges come about, the sooner the practice can be reined in.
Federal Court Rules FBI Violated Fourth Amendment Using Data Obtained Through Controversial Program
Earlier this year, US District Judge LaShann DeArcy Hall ruled that the FBI had violated an individual citizen’s Fourth Amendment rights when it searched without a warrant communications collected under the Section 702 of the Foreign Intelligence Surveillance Act (FISA). Section 702, as it is commonly referred to, allows the NSA to collect intelligence information, including emails, phone calls, and other digital communications, by targeting and surveilling non-U.S. persons (i.e., foreigners who are not believed to be on United States soil), without a warrant, when their communications are reasonably believed to be outside the United States. Critics of the program pointed out that under the program, US citizens’ private communications are inevitably collected by the federal government and stored indefinitely, allowing other federal law enforcement agencies access to the massive amount of data that was obtained without a warrant. In the case at hand, permanent US resident Agron Hasbajrami was arrested and charged with providing material support to a terrorist organization partly based on evidence obtained through FBI searches of data obtained under Section 702 surveillance. The practice is/was common in the FBI, with over 3.4 million searches of Section 702 materials conducted by the FBI in 2021 alone, with one advocacy rights group describing such searches as a “routine practice” in the FBI that gave the agency unfettered access to many Americans private and sensitive communications without a warrant. Judge DeArcy Hall ruled that such searches of data are unconstitutional because it allows the federal government to, “circumvent application of the warrant requirement simply because queried information is already collected and held by the government.” The ruling acknowledges that under Section 702 surveillance program, “While communications of US persons may nonetheless be intercepted, incidentally or inadvertently, it would be paradoxical to permit warrantless searches of the same information that Section 702 is specifically designed to avoid collecting,” and that, “public interest alone does not justify warrantless querying.” What the judge found particularly troubling in the case at hand was that the government searched Hasbajrami’s communications for months without ever attempting to get a warrant or arguing that said warrant could have jeopardized their investigation. “It is simply inconceivable that the government’s aims would have been frustrated by securing a warrant at any time over the course of many months,” DeArcy Hall wrote, and further, “there can be no argument that these queries were harmless.” Unfortunately, she did not rule that all warrantless 702 searches of Americans’ data are unconstitutional and even declined to suppress the information obtained and used against Hasbajrami, arguing that the conduct was covered under the aforementioned “good faith exception” to the exclusionary rule. In effect, if the judge’s ruling becomes adopted across the United States, this ruling simply puts the government on notice that in the future such conduct is prohibited in certain circumstances, not that the millions of past searches were necessarily prohibited and could potentially be suppressed in other criminal cases. Anyone who is facing charges that in part rely on large amounts of communications and data should make sure that they hire an experienced criminal defense attorney who can insure that any such data was not obtained in an illegal manner or using prohibited methods.
