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Chapter 1: What digital breadcrumbs do we leave behind and who collects them?
Private companies track our digital data. Should the government be able to as well? From American Public Media, this is Marketplace Tech. I'm Stephanie Hughes. We create digital breadcrumbs all the time. When we buy something online, when we post on social media, when we look up directions on the internet. This is data generally collected by private companies.
But how and when should the government be able to access it? There have been lawsuits filed recently against the Department of Homeland Security over its collection and use of data. Joining me now to talk about this is Jeremy Scott. He directs the Surveillance Oversight Program at the Electronic Privacy Information Center. I asked him to walk me through how the government collects data about us.
Well, a lot of it comes from private companies. Private companies collect a lot of data from us. And there's a few different ways that the government gets this data. Often DHS uses administrative subpoenas. There's no judicial oversight, right? And they can use it to compel production companies for certain information from companies or universities, etc.
Another way they get data is they just purchase the data, aka data brokers. With all this is a way to get around the Fourth Amendment a lot of times, because some of this information that the government and DHS in particular, are buying and collecting through private companies is information that if the government collected themselves directly will require a judicial warrant.
But they can get around that Fourth Amendment requirement by just buying the data from a company that collects it for them. Another source of data is companies that sell surveillance as a service. So companies that do license plate readers like Flock, they have set up a massive surveillance infrastructure in this country. They collect a bunch of information through their license plate readers.
They aggregate that data in large databases, and then they sell that access to that to law enforcement, including DHS and ICE, and have a lot of times analytical tools that sit over that. Yeah. the law enforcement agent can, you know, search those or run other kind of analysis on the information collected by these companies.
You touched on this briefly, but just to underline it, how does the Fourth Amendment, which protects against unreasonable search and seizure, play into this?
Well, in theory, it's supposed to protect from the government accessing your data or searching you when they don't have a reasonable suspicion. Generally, law enforcement needs a reason to look through your house or look through your possessions, etc. Or, you know, gather information about you, you know, where you're going throughout the day for your location or tracking your location.
But with this case, Smith v. Maryland, that was decided decades ago, that basically says if you give your information out to a third party, then you kind of lose privacy interest in it.
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Chapter 2: How does the government access data collected by private companies?
There's really a lack of laws that regulate this, and that's part of the problem. That's part of the work I do is pushing for legislation that would address this loophole that's been created by the government, buying data directly from companies that the government would have to get a judicial warrant for if it was going to collect directly themselves.
Montana has actually passed a law, and I think they're the first state to do so, a law that would close the data broker loophole and kind of protect that data from the government. Now, they still could get a warrant to get the data, but they can no longer just use this loophole around the Fourth Amendment and purchase the data directly from companies without getting a warrant.
And the bill itself is, I think, largely, if I recall, modeled after the Fourth Amendment is Not for Sale Act, which is a federal bill introduced by Senator Ron Wyden previously and something he continues to push for.
That's Jeremy Scott at the Electronic Privacy Information Center. Jesus Alvarado produced this episode. I'm Stephanie Hughes, and that's Marketplace Talk. This is APM.
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