Computers, Privacy & the Constitution
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The Government purchasing Location Data from private companies and the Fourth Amendment

-- By HyojungKim - 14 Mar 2022 (Revised paper)


A cell phone collects and stores intimate and personal data including location history, personal conversations, and photos. There is a huge business making a money with collected location data. At least 75 companies receive anonymous, precise location data from apps whose users enable location services to get local news and weather or other information. These companies sell the data to advertisers. The global market for Location Based Advertising estimated at $63.9 Billion in 2020, and is predicted to reach $133 Billion by 2026. This poses serious privacy concerns as cell phone goes wherever its user goes, making it possible to track every detail of its user.

It is not surprising that the government is spying on their citizens. German, Polish, and Hungarian authorities have admitted to using Pegasus, and F.B.I. purchased and tested a Pegasus system in 2019 but denied deploying the technology.The U.S. government has purchased the location data from the private market. After Carpenter, the Government have simply purchased location data from marketing companies gathered from several apps, instead of getting a search warrant for wireless carriers. The DHS and IRS had purchased cellphone location data for law-enforcement purposes. The IRS attempted to identify and track potential criminal suspects by purchasing location database. A commercial broker, a company called Venntel, contained location information on millions of U.S. mobile devices, drawn from games, weather apps and other common mobile applications. This leads to the question whether the government can lawfully buy location data from private market.

Whether the government can lawfully buy and use location data

No overarching federal privacy law

The government’s purchase and use of location data is not prohibited by federal privacy law. There is no overarching federal privacy law governing the collection and sale of personal information among private-sector companies, including information resellers. Also, no federal statute provides consumers the right to learn what information is held about them and who holds it, and users do not have the legal right to control the collection or sharing with third parties of sensitive personal information.

Fourth Amendment

Government’s purchase and use of location data can pose a problem of possibility of bypassing the Fourth Amendment, but it is not determined by courts yet. GPS data provided from the private company is much more accurate, thus more dangerous, than the cell tower data produced in Carpenter. However, Carpenter does not seem to apply when the government is purchasing a data from a market because of a factual and technical difference. In Carpenter, the government obtained the location information from Carpenter’s wireless carriers in Carpenter. Here, the government is buying personal data from private data collecting companies.

Also, third-party doctrine seems to apply since users gave permission to applications to collect their GPS data. Law-enforcement agencies of IRS and DHL have concluded that they don’t need a warrant because consumers technically can opt out of such location tracking. In fact, cell phones provide an option to opt out from tracking when using apps. This is also different from Carpenter since the cell phone location information was not truly “shared” in Carpenter as a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. In most cases, users are voluntarily turning over their location data for application to function, and therefore have no legitimate expectation of privacy.

However, the Carpenter court said that the third-party doctrine should not be mechanically applied, and the court should consider (1) the exhaustive chronicle of location information casually collected by wireless carrier (2) “the nature of the particular documents sought” and limitations on any “legitimate 'expectation of privacy' concerning their contents.” What the Carpenter court worried about was that with GPS information, the time-stamped data provides an intimate window into a person’s life, and the government can access deep repository of historical location information at practically no expense or warrant. The data obtained from private companies are huge accumulation, and no one would have expected the government to look into one’s long time location history through combination and collection of several apps they used.


The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. The Fourth Amendment seeks to secure the privacies of life against arbitrary power and to place obstacles in the way of a too permeating. The data purchased by the government is anonymized, but a whole collection of cellphone location data can identify users. The fact that IRS had another contract with Digital Envoy for an archive database subscription to NetAcuity, a product used to “pinpoint users’ geographic location” in 2020 shows the data is useful.

Whether the government violated the Fourth Amendment is undecided yet, but the government’s purchase and use of location data is against what the Fourth Amendment seeks to secure, which is the privacies of life against arbitrary invasions by government officials.

You don't need all these words. You should edit fundamentally, not superficially. Go through the draft word by word. Every word not doing work must go. Every sentence should then be rewritten to use fewer words and simpler grammar. What is here could be reduced by half without loss.

You need to clear up a technical confusion: this has nothing whatever to do with Carpenter. The cell tower data produced in Carpenter is very imprecise: it says what radio cell the p[hone was in. The data available on the private which you are discussing is GPS data, therefore accurate to 15m, compiled from applications running in smartassphones that have been given permission by users to access the smartassphone's internal location sensors.

That would affect the Fourth Amendment analysis, perhaps, where the location information introduced in evidence in a criminal prosecution. But that's unlikely to happen. The purchase of this data is intended to support investigations by finding people. If the person is found, how they were located is unlikely to be a matter of evidentiary interest in any eventual action, which might not be a criminal prosecution. So in order to show that there is a fourth amendment problem you need the real world to oblige, and it hasn't, nor is it likely to. Relying on the Wall Street Journal for your legal analysis isn't a good idea. They wrote a couple of stories based on some tasty leaks from the IGs of the two agencies, probably the result of some internal politics, but they did not locate a constitutional issue: those leaks seem intended to get Congressional interest.

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r4 - 01 May 2022 - 08:36:08 - HyojungKim
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