Simmons, Joshua L., Buying You: The Government’s Use of Fourth-Parties to Launder Data about ‘The People’ (September 19, 2009). Columbia Business Law Review, Vol. 2009, No. 3, p. 950. The full-text article is available as a free download at SSRN: http://ssrn.com/abstract=1475524
Your information is for sale, and the government is buying it at alarming rates. The CIA, FBI, Justice Department, Defense Department, and other government agencies are at this very moment turning to a group of companies to provide them information that these companies can gather without the restrictions that bind government intelligence agencies. The information is gathered from sources that few would believe the government could gain unfettered access to, but which, under current Fourth Amendment doctrine and statutory protections, are completely accessible.
Fourth-parties, such as ChoicePoint or LexisNexis, are private companies that aggregate data for the government, and they comprise the private security-industrial complex that arose after the attacks of September 11, 2001. They are in the business of acquiring information, not from the information’s originator (the first-party), nor from the information’s anticipated recipient (the second-party), but from the unavoidable digital intermediaries that transmit and store the information (third-parties). These fourth-party companies act with impunity as they gather information that the government wants but would be unable to collect on its own due to Fourth Amendment or statutory prohibitions. This paper argues that when fourth-parties disclose to law enforcement information generated as a result of searches that would be violations had the government conducted the searches itself, those fourth-parties’ actions should be considered searches by agents of the government, and the data should retain privacy protections.