End-Running Warrants: Purchasing Data under the Fourth Amendment and the State Action Problem

Abstract

Rather than obtain warrants, law enforcement and intelligence agencies now purchase mass datasets of precise geolocation information from third-party brokers. These location data reveal the most intimate aspects of our personal lives: our political beliefs, religious associations, sexual preferences, private activities, and much more. The limited scholarship on this topic suggests that whether the government must obtain a warrant to purchase these sensitive but commercially available data turns solely on whether users have a reasonable expectation of privacy in these records. But this Note suggests that this (albeit necessary) privacy analysis misses the crux of the controversy.

The Fourth Amendment regulates unreasonable government action, yet privacy proponents and defenders of the practice alike have neglected to analyze whether a purchase is a government search that independently violates a reasonable expectation of privacy. This Note––the first comprehensive examination of data purchases under Fourth Amendment privacy and state action doctrine––establishes that a government purchase is not a search. Nor does the purchase convert service providers or brokers into state actors. As a result, Fourth Amendment doctrine does not regulate a government purchase of sensitive geolocation data. This surprising but inescapable conclusion underscores the urgent need for Congress to pass legislation to regulate private sales and market transactions of these data in the first place––to prevent foreign actors and other companies from getting their hands on our sensitive data, and to revive the foundational promise of the Fourth Amendment.

Keywords: Constitutional Law, Fourth Amendment, Surveillance, National Security