By Brennan Center
Photos: YouTube Screenshots
American data privacy law was already weak before the explosion of data caused by smartphones and high-speed internet service. Data broker companies have been taking advantage — and so has law enforcement. Congress must act to bring them all into line with legislation that gives Americans’ privacy protections a badly needed update. The Brennan Center has published a resource that explains how Congress can do just that.
The lack of a comprehensive data privacy protection law in the United States and a reliance on illusory “notice-and-consent” regimes have spawned a market for data brokers to trade in people’s personal data. This $200 billion industry assembles, analyzes, and sells data from mobile apps, cookies, and other sources to create detailed dossiers on millions of Americans. Data brokers traffic in all types of personal information, including detailed location information, health information, purchase history, and browsing history. Alone or combined, that information can reveal the most intimate details of our lives: our movements, habits, associations, health conditions, and ideologies.
The Federal Trade Commission’s recent complaint against data broker InMarket highlighted how the company collected users’ location data from mobile apps that were downloaded to over 390 million devices. InMarket analyzed that information to group users into audiences like “Christian church goers,” “wealthy and not healthy,” and “parents of preschoolers.” Data brokers sell this type of personal information, not only to advertisers, but also to predatory loan companies, stalkers, scammers, and foreign actors. They can also exploit legal loopholes to sell such information to government agencies, allowing these agencies to bypass privacy safeguards — including, in some cases, the requirements of the Fourth Amendment. The government’s unfettered access to personal data without judicial or legislative oversight can exacerbate existing biases in law enforcement and intelligence practices, permitting speculative investigations on the basis of constitutionally protected categories and the targeting of marginalized communities. We’ve seen alarming examples of this over the past few years.
For example, a Vice investigation in 2020 revealed that the Defense Department purchased location data collected by data broker Outlogic (formerly X-mode) from popular prayer apps to monitor Muslim communities. Police departments similarly purchased information to track racial justice protesters.
In states where abortion is illegal, location data can be used by police to track people involved in providing and accessing reproductive health services.
These risks to Americans’ privacy and freedoms of speech and association will be amplified with the integration of new artificial intelligence tools that, as President Biden’s recent executive order on AI acknowledges, make it easier to “extract, re-identify, link, infer, and act on sensitive information about people’s identities, locations, habits, and desires.”
