Global Courant
Numerous government agencies, including the FBI, Department of Defense, National Security Agency, Treasury Department, Defense Intelligence Agency, Navy and Coast Guard, have purchased large amounts of personal information of US citizens from commercial data brokers.
The revelation was published in a partially released, internal Office of the Director of National Intelligence report released on June 9, 2023.
The report shows the breathtaking scale and invasive nature of the consumer data market and how that market enables direct surveillance of people. The data includes not only where you have been and who you are connected to, but also the nature of your beliefs and predictions about what you might do in the future.
The report underlines the serious risks associated with purchasing this data, and urges the intelligence community to adopt internal guidelines to address these issues.
As a privacy, electronic surveillance and technology law lawyer, researcher and law professorI’ve done years of research to write and advise on the legal issues raised in the report.
These issues are becoming increasingly urgent. Today’s commercially available information, coupled with the now ubiquitous artificial intelligence for decision making and generative AI like ChatGPT, greatly increases the threat to privacy and civil liberties by giving the government access to sensitive personal information beyond what it could collect through court-authorized supervision.
What is commercially available information?
The authors of the report take the position that commercially available information is a subset of publicly available information. The distinction between the two is legally significant. Publicly available information is information that is already in the public domain. You could find it by doing a little searching online.
Commercially available information is different. It is personal information collected from a dizzying array of sources by commercial data brokers who collect and analyze it and then make it available for purchase by others, including governments. Some of that information is private, confidential, or otherwise protected by law.
The commercial data market collects and packages massive amounts of data and sells it for various commercial, private and government purposes. National Accounting Office
The sources and types of data for commercially available information are mind-boggling. They include public records and other publicly available information. But much more information comes from the almost ubiquitous internet-connected devices in people’s lives, such as mobile phones, smart home systems, cars and fitness trackers. These all use data from advanced, embedded sensors, cameras and microphones. Sources also include data from apps, online activities, texts and emails, and even websites of health care providers.
Types of include data location, gender and sexual orientation, religious and political views and affiliations, weight and blood pressure, speech patterns, emotional states, behavioral information about numerous activities, shopping patterns and family and friends.
This data offers companies and governments a glimpse into the “Internet of Behavior”, a combination of data collection and analysis aimed at understanding and predicting people’s behavior.
It collects a wide variety of data, including location and activities, and uses scientific and technological approaches, including psychology and machine learning, to analyze that data. The Internet of Behaviors provides a map of what each person has done, is doing and is expected to do, and provides a means of influencing someone’s behavior.
Smart homes can be good for your wallet and good for the environment, but really bad for your privacy.
Better, cheaper and unlimited
The rich depths of commercially available information, analyzed with powerful AI, provide unprecedented power, intelligence and investigative insight. The information is a cost-effective way to keep tabs on just about anyone, plus it yields far more sophisticated data than traditional electronic surveillance tools or methods like eavesdropping and location tracking.
Government use of electronic surveillance tools has expanded regulated by the federal government and state laws. The U.S. Supreme Court has ruled that the Constitution Fourth Amendment, which prohibits unreasonable searches and seizures, requires a warrant for a wide variety of digital searches. These include eavesdropping or intercepting someone’s callstext messages or emails; Using GPS or mobile location data follow a person; or search on a person’s mobile phone.
Complying with these laws takes time and money, and electronic monitoring laws limit what, when, and how data can be collected. Commercially available information is less expensive to obtain, provides much richer data and analysis, and is subject to little oversight or restriction compared to when the same data is collected directly by the government.
The threats
Technology and the rapidly growing amount of commercially available information allow different forms of information to be combined and analyzed in new ways to understand all aspects of your life, including preferences and desires.
How the collection, aggregation and sale of your data violates your privacy.
The report from the Office of the Director of National Intelligence warns that the increasing volume and widespread availability of commercially available information pose “significant threats to privacy and civil liberties.”
It increases the government’s power to monitor its citizens beyond the bounds of the law, and it opens the door for the government to use that data in potentially unlawful ways. This could include use location data obtained through commercially available intelligence rather than a warrant to investigate and prosecute someone for abortion.
The report also captures how widespread government purchases of commercially available information are and how haphazard government practices are around the use of the information.
The purchases are so pervasive and agency practices so poorly documented that the Office of the Director of National Intelligence cannot even fully determine how many and what types of intelligence agencies buy and what the various agencies do with the data.
Is it legal?
The question of whether it is legal for government agencies to purchase commercially available information is complicated by the sheer number of sources and the complex mix of data it contains.
There is no legal prohibition on the government collecting information that has already been made public or is otherwise publicly available. But the non-public information listed in the declassified report contains data typically protected by US law. The mix of private, sensitive, confidential or otherwise legally protected data of the non-public information makes collecting a legal gray area.
Despite decades of increasingly sophisticated and invasive commercial data aggregation, Congress has not passed a federal data privacy law. The lack of federal regulation around data creates a loophole for government agencies to circumvent the Electronic Surveillance Act.
It also allows agencies to amass massive databases that AI systems learn from and use in often limitless ways. The ensuing erosion of privacy has been a concern for more than a decade.
Limit the data pipeline
The report from the Office of the Director of National Intelligence acknowledges the baffling loophole that commercially available intelligence provides for government surveillance:
“The government would never have been allowed to force billions of people to carry location tracking devices with them at all times, to log and track most of their social interactions, or to track all of their reading habits flawlessly. But smartphones, connected cars, web tracking technologies, the Internet of Things and other innovations have had this effect without government intervention.”
You are being watched by your devices and devices. Image: Twitter
However, it is not entirely correct to say “without government participation”. The legislature could have prevented this situation by enacting data privacy laws, more tightly regulating commercial data practices, and overseeing the development of AI.
Congress could still address the issue. Representative Ted Lieu has the a bipartisan proposal for a National AI Commissionand Senator Chuck Schumer has suggested an AI regulatory framework.
Effective data privacy laws would protect your personal information from government agencies and corporations, and responsible AI regulation would stop them from manipulating you.
Anne Toomey McKenna is visiting professor of law, University of Richmond
This article has been republished from The conversation under a Creative Commons license. Read the original article.
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