Law Enforcement Purchasing Commercially-Available Geolocation Data is Unconstitutional

Many of the smartphone apps people use every day are collecting data on their users and, in order to make money, many of these apps sell that information. One of the customers for this data is the U.S. government, which regularly purchases commercially available geolocation data. This includes the Department of Defense, CBP, ICE, the IRS, and the Secret Service. But it violates the First and Fourth Amendments of the U.S. Constitution for the government to purchase commercially available location data it would otherwise have to get a warrant to acquire. 

A recent article in Motherboard reports that a Muslim prayer app (Muslim Pro), a Muslim dating app (Muslim Mingle), and many other popular apps have been selling geolocation data about their users to a company called X-Mode, which in turn provides this data to the U.S. military through defense contractors. 

Although Muslim Pro announced it would stop selling data to X-Mode, the awful truth remains: far too many companies that collect geolocation data can make a quick buck by selling that information, and the federal government is a regular buyer. 

This violates the  First and Fourth Amendments. In the current location data marketplace, if your phone and apps know where you are, then the government could, too. But the Supreme Court has decided that our detailed location data is so revealing about our activities and associations that law enforcement must get a warrant in order to acquire it. Government purchase of location data also threatens to chill people’s willingness to participate in protests in public places, associate with who they want, or practice their religion. History and legal precedent teach us that when the government indiscriminately collects records of First Amendment activities, it can lead to retaliation or further surveillance. 

Unfortunately, this problem goes well beyond X-Mode. Other data brokers that sell app-derived location data to the federal government include Anomaly Six, Locate X, and Venntel. In February 2020, the Wall Street Journal first revealed how the government bought geolocation data, originating from weather apps and mobile games, in order to fuel immigration enforcement. There is only limited oversight of this practice, in part because the government and its vendors have kept it secret. The government could potentially use this commercially available data to put people, including attorneys, activists, and journalists, under constant geolocation surveillance without a warrant. 

We need federal legislation preventing the government from purchasing location data. Just because the app developers are selling our data, does not mean we should let the government subvert warrant requirements and trample the Constitution by buying our data. The landscape of corporations buying and selling consumer data is already terrifying enough from a privacy perspective, which is why we also need federal comprehensive consumer data privacy legislation. Congress should step up and introduce a bill that would prevent the government from buying geolocation data that would allow law enforcement and intelligence agencies to know our every move. Just because our favorite video poker app knows where we’ve been, doesn’t mean Immigration and Customs Enforcement should know as well.