Notes

3 : https://kinglawoffices.com/criminal-disputes/third-party-disclosure-and-the-fourth-amendment/

Criminal Investigation

In Carpenter v. United States (2018), the Supreme Court confirmed an individual’s legitimate expectation of privacy concerning digital information. The court held that the officials must generally obtain a search warrant supported by probable cause before acquiring location tracking from a wireless carrier, even when held by third parties.(5)

However, the decision in this case was left unresolved for non-coercive seizure. Government agencies have argued that the protections apply only when the government ‘compels’ people to disclose information, not when they ‘sell or voluntarily disclose’ information.(6) As a result, there would be no legal mechanism prohibiting the government from purchasing data from willing sellers(7)

Administrative Search Doctrine

Administrative Search Doctrine permits government officials to perform a duty without seeking warrants for every inspection. This doctrine should be carefully applied to balance individual privacy and governmental interest.(8) Under Camara v. Municipal Court (1967), administrative searches for non-criminal investigations are also subject to the Fourth Amendment. Moreover, in New York v. Burger (1987), warrantless administrative searches are limited only to closely regulated businesses, a substantial government interest, and a constitutionally adequate substitute for a warrant.(9)

However, the factual scenario of this doctrine in those cases does not align with the government's commercial purchase of information. Instead of directly conducting a ‘search’ by themselves, the government engages in a commercial transaction to acquire information that third parties have already collected.

Notes

6 : https://www.brennancenter.org/our-work/research-reports/closing-data-broker-loophole#:~:text=The%20Fourth%20Amendment%20requires%20the,expectation%20of%20privacy%20in%20information

8 : https://www.bu.edu/jostl/files/2018/03/1-Hans-Online-version.pdf

9 : https://openbooks.lib.msu.edu/cj275/chapter/administrative-searches/

We can make this better by focusing the legal analysis more tightly. Buying from wiling sellers is not compelling production, so if there are constitutional limits on such transactions they don't arise from rules against coercive searching. Thinking about administrative searches of health care records takes you into areas adjacent to the jurisprudence of administrative searches more generally under the Fourth Amendment, which you don't discuss and which in general doesn't work out the way you want. (Perhaps automobile repair records and human repair records are constitutionally different, but we need to see more closely why, particularly once the arguments used in Roe v. Wade are no longer available.)

Legal Loophole: Government Can Buy Health Data, Paving the Way to Criminalize Abortion

-- By SisadeeDeesombat - 24 Mar 2025

Introduction

In the digital age, millions of people increasingly rely on technologies like smartphone applications to facilitate day-to-day lives, including health-relating apps used for personalized nutrition advice, menstruation tracking, health provider searching, and telehealth online meetings. Without awareness or bargaining power, they are compelled to give the application consent to collect and use their private information. This poses significant privacy risks, resulting in their data being collected, packed, and sold by data brokers to whoever offers the highest bid, especially government agencies .(20) Moreover, uncomprehensive laws create legal loopholes that authorize the government to warrantlessly purchase this sensitive information and use it as a surveillance mechanism. Abortion seekers are the recent target of this digital surveillance.

The Legal Landscape

Constitutional concerns

The Fourth Amendment protects individuals from unreasonable searches and seizures. Under this amendment, electronic surveillance, data collection, and location tracking were initially questionable. The Supreme Court, however, confirmed an individual’s legitimate expectation of privacy concerning digital information in Carpenter v. United States (2018). The court held that the officials must generally obtain a search warrant supported by probable cause before acquiring location tracking from a wireless carrier.

On the other hand, the decision of this case was interpreted narrowly. The idea was that there would be no legal mechanism prohibiting the government from purchasing data from third-party data brokers because Carpenter does not regulate the practices of data brokers.(21) As a result, the government no longer needs a warrant to obtain personal data sold to them.

Existing law and its limitations

Another relevant federal law is the Health Insurance Portability and Accountability Act (HIPAA), which protects individuals' health information by prohibiting Covered Entities from disclosing patients’ protected health information without consent. However, HIPAA has notable limitations because it only governs Covered Entities who are health care providers, such as doctors, dentists, hospitals, nursing homes, pharmacies, urgent care clinics, and other entities that provide health care in exchange for payment .(22) Therefore, data brokers who may buy or collect users’ information from various free health application developers or other electronic communication providers are not subject to this act and freely sell the information to the government without violating the law.

Real-World Consequences

Outlawing abortion

A few years ago, the Supreme Court ruled that the federal constitution does not provide a right to abortion. In other words, it allowed states to criminalize abortion in Dobbs v. Jackson Women's Health Organization (2022). This case poses risks for women seeking abortions, abortion providers, and others who aid with abortion. Consequently, police and prosecutors can obtain a warrant or purchase digital information to collect location data, browser searches, or online messages of those seeking abortion clinics or services and use them for investigation and prosecution.

Impact on digital surveillance

In Nebraska, a woman was accused of helping her teen daughter have an illegal abortion. Here, investigators sent a warrant to Facebook requesting the mother-daughter’s private messages. The message showing that the mother told her daughter how to take abortion pills was used as evidence.(23)

In Mississippi, authorities utilized a woman’s personal search history regarding the purchase of abortion pills as evidence to charge her with second-degree murder in connection with a miscarriage.(24)

Recently, it was revealed that an anti-abortion political group used mobile phone location data sourced from data brokers to send misinformation to people who visited reproductive health clinics in many states.(25)

These cases illustrate how individuals’ sensitive personal records are weaponized against them. The exploitation of location and healthcare data to facilitate excessive surveillance without proper safeguards must urgently end. Otherwise, people’s privacy will be consistently violated, and their everyday activities will be monitored and sold without their consent.

Closing the Loophole

Proposed legislation

Post Carpenter, it is evident that current regulations fail to protect privacy rights sufficiently, and the ruling in the case has been interpreted far beyond its principle, which guarantees the expectation of privacy. To address these concerns, lawmakers have proposed legislative reforms like the Fourth Amendment Is Not For Sale Act. This bill aims to close the legal loophole that enables the government to buy personal information from data brokers without judicial oversight.(26)

Key provisions

First, this bill requires the government to get a court order before compelling data brokers to disclose data. The government, therefore, cannot simply buy data from the brokers. In other words, the Senators stated that this bill “ensures that the government can't use its credit card to end-run the Fourth Amendment.”(27)

Secondly, this bill prevents law enforcement agencies from buying illegitimately obtained information, which means it was obtained from a user's account or device or via deception, hacking, or violations of a contract, privacy policy, or terms of service. This may prompt providers or developers to be more considerate when using users’ data and give users a greater opportunity to choose to disable their permissions, disconnect from the application, or delete the shared data.

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Notes

26 : https://www.brennancenter.org/our-work/research-reports/closing-data-broker-loophole