The Biden administration recently took a step to protect personal data from government abuse. But it was only a baby step. And it left out the one government that is the most immediate threat to Americans’ privacy — our own.
President Joe Biden announced an executive order on Feb. 28 to try to prevent “countries of concern” from buying sensitive genomic and biometric data, as well as health, financial, and other personally identifiable information sold by data brokers to hostile regimes such as China, Iran, or Russia. This is good as far as it goes, but it’s not nearly far enough.
For example, it will be very difficult to stop hostile governments from obtaining the public’s data. FBI Director Christopher Wray told a London business audience in 2022 that China often “uses elaborate shell games,” buying corporate shares with overweight voting rights and employing data tricks, to make it difficult for a business or a regulator to know when they are dealing with a Chinese state-owned enterprise. With Americans’ personal data being continuously sold to thousands of ad buyers who populate our Facebook feeds with ads, how hard will it be for a Manchurian corporation to set up a dummy advertiser in San Francisco?
Probably not hard.
But back to our own government: Patrick Eddington, former CIA analyst and Cato Institute senior fellow, reported that the U.S. government also likely has the capability to pose as ad-bidders to target specific people, such as gun buyers. Journalist Byron Tau in Wired described how one technology consultant told government clients that “the advertising technology ecosystem is the largest information-gathering enterprise ever conceived by man.” Tau reported that this ecosystem was used by a contractor to follow the location and movements of support staff in Russian President Vladimir Putin’s entourage, effectively the same as following Putin himself. When such a lens can be trained on the secretive dictator of a great world power, what chance does an ordinary American have to hide from our government?
The easiest way for the government to get your private data is simply to buy it. The FBI, IRS, Drug Enforcement Administration, Department of Homeland Security, and many other agencies have signed contracts for years to purchase the data of millions of Americans scraped from the apps on our cellphones. The data include our most sensitive and personal information, tracking our every move by foot, by car, and online — and all in virtually real time. From these purchases, the government has warrantless, up-to-date access to the details of our finances, health and mental health concerns, romantic lives, how we worship and with whom, what we buy, and our political beliefs and activities.
So Biden’s executive order, which will struggle even to deal with “countries of concern,” does nothing to curb these federal “agencies of concern,” some of which can deploy a SWAT team to your front door at dawn. It is one thing to worry about what China might do with the data of a federal employee or military officer during a conflict. What our own government can do to us now is the immediate concern and arguably the bigger danger. How many taxpayers want the IRS tracking their every move? How many defendants in federal court want the FBI to have more access to their personal lives than J. Edgar Hoover ever did? How many Muslim Americans are unconcerned that the Pentagon purchased data from a Muslim dating app?
Why should our data be sold to any government, whether another Anglophone member of the “Five Eyes” surveillance club or our own intelligence services?
The advertising technology ecosystem creates a portrait of the private lives of millions of law-abiding Americans that is more intimate than a diary. (After all, people are known to omit secrets from their diaries.) Using that ecosystem, federal agencies can violate every shred of privacy without ever seeking a warrant, as required by the Constitution. And yet the intelligence community is so determined to try to keep possession of our data, tracking our every move, continuously, that they have tasked their champions on Capitol Hill to block any floor debate or vote on purchased data in the FISA Section 702 reauthorization deliberation in Congress.
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Biden’s executive order was a first step in the right direction. But absent any follow-up to preclude government agents, foreign or domestic, from buying our data, it will mostly be a cosmetic achievement.
What the executive branch is unwilling to do, Congress must complete. It must restore the plain meaning of the Fourth Amendment, which forbids unreasonable searches of our private effects, by establishing a warrant requirement before our government can snoop into our private lives.
Gene Schaerr is general counsel of the Project for Privacy and Surveillance Accountability.
