Perhaps most controversially, the report states that the government believes it can “persistently” track the phones of “millions of Americans” without a warrant, so long as it pays for the information. Were the government to simply demand access to a device’s location instead, it would be considered a Fourth Amendment “search” and would require a judge’s sign-off. But because companies are willing to sell the information—not only to the US government but to other companies as well—the government considers it “publicly available” and therefore asserts that it “can purchase it.”

It is no secret, the report adds, that it is often trivial “to deanonymize and identify individuals” from data that was packaged as ethically fine for commercial use because it had been “anonymized” first. Such data may be useful, it says, to “identify every person who attended a protest or rally based on their smartphone location or ad-tracking records.” Such civil liberties concerns are prime examples of how “large quantities of nominally ‘public’ information can result in sensitive aggregations.” What’s more, information collected for one purpose “may be reused for other purposes,” which may “raise risks beyond those originally calculated,” an effect called “mission creep.” 

Most Americans have at least some idea of how a law enforcement investigation unfolds (if only from watching years of police procedurals). This idea imagines a cop whose ability to surveil them, turn their phone into a tracking device, or start squeezing records out of businesses they frequent, are all gated behind evidentiary thresholds, like reasonable doubt and probable cause. 

These are legal hurdles that no longer bother an increasing number of government agencies. 

Access to the most sensitive information about a person was once usually obtained in the course of a “targeted” and “predicated” investigation, the report says. Not anymore. “Today, in a way that far fewer Americans seem to understand, and even fewer of them can avoid, [commercially available information] includes information on nearly everyone,” it says. Both the “volume and sensitivity” of information the government can purchase has exploded in recent years due to “location-tracking and other features of smartphones,” and the “advertising-based monetization model” that underlies much of the internet, the report says. 

“In the wrong hands,” the ODNI’s advisers warn, the same mountain of data the government is quietly accumulating could be turned against Americans to “facilitate blackmail, stalking, harassment, and public shaming.” Notably, these are all offenses that have been committed by intelligence agencies and White House administrations in the past. What constraints do exist on domestic surveillance activities are all a direct response to that history of political sabotage, disinformation, and abusive violations of Americans’ rights. 

The report notes: “The government would never have been permitted to compel billions of people to carry location tracking devices on their persons at all times, to log and track most of their social interactions, or to keep flawless records of all their reading habits. Yet smartphones, connected cars, web tracking technologies, the Internet of Things, and other innovations have had this effect without government participation.”

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