The Lawfare Podcast: Archive Episode Summary Episode: Matthew Tokeson on Government Purchases of Private Data
Original Release Date: December 4, 2023
Summary Prepared on: May 25, 2025

Introduction

In this archival episode of The Lawfare Podcast, hosted by Stephanie Pell, Matthew Tokeson, a professor at the University of Utah’s S.J. Quinney College of Law, delves into the contentious practice of government agencies purchasing private consumer data. The discussion centers on the constitutional implications of such purchases, particularly regarding the Fourth Amendment, which guards against unreasonable searches and seizures.

Background and Context

Stephanie Pell (00:02:14):
The episode references a recent development where Russell Vaugh, acting director of the Consumer Financial Protection Bureau, rescinded a proposed rule that would have restricted data brokers from selling sensitive consumer information without stringent controls. Concurrently, Montana emerged as the first state to legislate against government acquisition of private data without obtaining a warrant, highlighting a growing state-level response to federal inaction.

Key Discussions and Insights

Motivation Behind the Research

Matthew Tokeson (00:04:53):
Tokeson was prompted to investigate after learning that the Barnstable Police Department in Massachusetts was purchasing location data to monitor individuals via their cell phones. This revelation, particularly alarming given Barnstable’s reputation as a relatively safe community, underscored the pervasive and perhaps undue reliance on private data by law enforcement.

Types of Data Purchased by Law Enforcement

Tokeson (00:05:52):
Law enforcement agencies primarily purchase location data collected by consumer-facing cell phone applications—ranging from weather and gaming apps to dating services. This data, originally gathered for marketing purposes and sold to data brokers, is repurposed by law enforcement to track individuals. Additionally, internet traffic data, such as IP logs, are acquired to monitor online activities.

Specialization of Data Brokers

Tokeson (00:07:01):
Data brokers selling to law enforcement often operate as specialized subsidiaries of larger firms. These entities provide advanced tracking software that surpasses basic consumer-oriented data offerings, enabling more precise and actionable surveillance capabilities.

Use Cases of Purchased Data

Tokeson (00:08:12):
An illustrative case involves a government agency detecting unusual cell phone movements across the U.S.-Mexico border, leading to the discovery of an underground smuggling tunnel connecting a defunct Kentucky Fried Chicken location in the U.S. to a residence in Mexico. This intelligence, obtained through purchased data, allowed authorities to apprehend an individual suspected of drug trafficking without revealing the existence of the purchased datasets.

Challenges in Regulation and Oversight

Pell (00:09:38):
A significant hurdle in regulating these practices is the opaque nature of data purchases. The use of such data often remains concealed within broader investigations, limiting the ability of courts and defense attorneys to challenge its constitutionality effectively.

Tokeson (00:10:02):
Data brokerage companies frequently enforce non-disclosure agreements to prevent the details of data transactions from surfacing in legal proceedings. This practice, known as parallel construction, obscures the origin of evidence and hinders constitutional challenges.

Legal Framework and Fourth Amendment Concerns

Pell (00:12:51):
Tokeson argues that the government's acquisition of private data through purchasing from data brokers likely violates the Fourth Amendment, which protects against unreasonable searches.

Tokeson (00:13:26):
He references the landmark Supreme Court case Carpenter v. United States (2018), which held that obtaining historical cell site location information (CSLI) without a warrant constitutes a Fourth Amendment violation. Prior to Carpenter, law enforcement accessed CSLI through the Stored Communications Act's 2703d court order, which required a lower standard than probable cause.

Comparison Between CSLI and App-Based Location Data (00:15:00):
While CSLI relies on cell tower data and offers variable precision, app-based location data typically utilize GPS, providing more accurate and comprehensive tracking information. This distinction raises further privacy concerns.

Growth of Data Purchases Post-Carpenter

Tokeson (00:16:19):
Following the Carpenter decision, there was a noticeable uptick in government agencies purchasing location data. Agencies like the Department of Homeland Security and the Defense Intelligence Agency began acquiring such data to circumvent the now stricter warrant requirements.

Government's Justifications for Data Purchases

First Argument: Commercial Availability (00:17:58):
Government attorneys posit that because location data is commercially available, its purchase does not infringe upon Fourth Amendment rights. They draw parallels to Maryland v. Macon, suggesting that purchasing commercially sold products does not constitute a search.

Tokeson’s Rebuttal (00:18:39):
He contends that unlike public goods, sensitive location data is not genuinely accessible to the average person in a meaningful or useful manner. This lack of true availability undermines the government’s analogy to ordinary commercial transactions and maintains the Fourth Amendment’s protective scope over such data.

Second Argument: User Consent Through App Permissions (00:28:17):
Law enforcement argues that by granting apps permission to collect location data, users implicitly consent to its use, including potential access by government agencies.

Tokeson’s Counterpoint (00:29:01):
He argues that app permissions are often non-specific and do not explicitly grant consent for governmental use of data in investigations. Moreover, users are typically unaware of the downstream sale and use of their data, rendering the consent argument legally and ethically insufficient.

Legal Precedents and Ongoing Litigation

Tokeson (00:26:31):
He cites a district court case where a tracking service's cooperation with law enforcement to monitor individuals was deemed as state action, thereby violating the Fourth Amendment. Although this case has yet to be reviewed by higher courts, it sets a preliminary precedent questioning the constitutionality of such practices.

Recommendations and Solutions

Judicial Approaches

Tokeson (00:34:35):
He suggests leveraging Freedom of Information Act (FOIA) requests and transparency litigation as preliminary steps to unearth government data purchases. Such transparency is essential for any judicial challenges to take root.

Legislative Actions

Tokeson (00:34:35):
Proposes the introduction of comprehensive privacy legislation akin to Europe’s General Data Protection Regulation (GDPR) in the United States. This legislation would enforce explicit consumer consent for all data transactions, thereby restricting unauthorized government access.

Mention of Legislation Efforts (00:34:35):
Senator Ron Wyden’s proposed “Fourth Amendment is Not for Sale Act” is highlighted as a legislative effort aimed at curbing government purchases of consumer data, though it remains pending.

Regulatory Changes

Tokeson (00:38:47):
Advocates for enhanced regulatory oversight by agencies like the Federal Trade Commission (FTC) to enforce stricter controls on data sales and prevent misuse by government entities.

Conclusion

Tokeson (00:40:10):
Emphasizes the importance of public awareness and legislative advocacy in addressing the unchecked purchase of private data by government agencies. He urges listeners to engage with policymakers and support initiatives aimed at safeguarding constitutional privacy rights.

Stephanie Pell (00:40:52):
Reiterates the significance of this issue for Fourth Amendment advocates and encourages continued scrutiny and discourse.

Notable Quotes

• Matthew Tokeson (00:04:53):
  “It just sort of struck me and shocked me a little bit that the Barnstable Police Department felt that they needed to closely track people's locations.”

• Tokeson (00:10:51):
  “We see that a lot when we're looking at government purchases of private data.”

• Tokeson (00:17:58):
  “They're trying to draw an analogy between, you know, purchasing something in a store and purchasing location data.”

• Tokeson (00:20:53):
  “Accordingly, I think the Fourth Amendment still protects this data, which is, as the Supreme Court has said to CSLI, something very similar is private, you know, is generally protected by the Fourth Amendment.”

• Tokeson (00:30:56):
  “It's also the case that I don't think 99% of people, when they're clicking, you know, yes on the app, have a sense of where that data might go.”

Final Thoughts

This episode of The Lawfare Podcast offers a critical examination of the intersection between technology, privacy, and law enforcement practices. Tokeson’s insights reveal significant gaps in current legal frameworks and underscore the urgent need for comprehensive legislative and regulatory reforms to protect individual privacy rights against invasive data practices.

For listeners interested in national security, law, and policy, especially regarding privacy and constitutional law, this episode serves as a vital resource for understanding the evolving challenges in regulating government access to private data.