Gavin Howe
Law enforcement agencies have access to a variety of tools and legal frameworks that allow them to obtain and disclose personal information. This includes contracting with surveillance tech companies, using geofence warrants, and issuing administrative subpoenas. While these practices can aid in investigations, they also raise concerns about privacy and the potential for overreach. The Privacy Act and other standards seek to balance law enforcement's need for information with individuals' rights, classifying information based on its sensitivity and regulating access accordingly. However, with the ever-evolving landscape of technology, the line between necessary investigative measures and invasions of personal privacy remains a complex and evolving issue.
| Characteristics | Values |
|---|---|
| Law enforcement access to third-party records | Regulated by investigatory standards, not by access following the initiation and in the course of criminal prosecution |
| Categories of information | Highly private, moderately private, minimally private, or not private |
| Factors determining the category of information | Extent of necessity to participate in society or commerce, social benefit, and intimacy of information |
| Geofence warrants | Allow law enforcement to seek device information of users at a certain place and time |
| Tech company contracts | Surveillance tech companies like Clearview AI and Voyager, and consumer tech companies like Amazon |
| FOIA requests | Agencies must disclose non-exempt information, but Privacy Act prohibits discretionary FOIA releases |
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What You'll Learn
Geofencing warrants
However, the use of geofencing warrants has raised concerns about privacy and the Fourth Amendment. In the United States, the Fourth and Fifth Circuits issued conflicting rulings on the constitutionality of these warrants. The Fourth Circuit held that a geofence warrant yielding two hours of precise location data does not constitute a Fourth Amendment search and thus does not require probable cause. On the other hand, the Fifth Circuit ruled that the practice does violate the Fourth Amendment, regardless of probable cause.
The Fifth Circuit's decision in 2024 concluded that geofence warrants are "categorically prohibited by the Fourth Amendment." This ruling highlighted the challenges of applying traditional legal doctrines to modern technologies, particularly in balancing privacy interests with law enforcement needs.
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Privacy Act exemptions
The Privacy Act of 1974 provides that an agency will grant access to records on individuals within their possession unless one of ten exemptions applies. These exemptions are further categorised into three types: "special", "general", and "specific".
Special Exemption
A special exemption allows agencies to exempt information compiled in anticipation of civil litigation from the Privacy Act's access and amendment provisions.
General Exemptions
There are two general exemptions that allow agencies to exempt certain records from all Privacy Act provisions except those specifically articulated as not subject to the general exemptions.
Specific Exemptions
There are seven specific exemptions that allow agencies to exempt certain records from Privacy Act provisions specifically articulated as subject to exemption.
- Exemption (d)(5): Information compiled in anticipation of civil action or proceeding; self-executing exemption.
- Exemption (j)(1): CIA records (information concerning polygraph records, sources and methods to gather intelligence, including the facilities, organisation, functions, names, officials' titles, salaries, or numbers of personnel employed by the Agency, and documents or information provided by foreign governments).
- Exemption (j)(2): Principal function criminal law enforcement agency; records compiled during the course of a criminal law enforcement proceeding.
- Exemption (k)(1): Classified information under an Executive Order in the interest of national defense or foreign policy.
- Exemption (k)(2): Non-criminal law enforcement records; criminal law enforcement records compiled by a non-principal function criminal law enforcement agency; coverage is less broad where an individual has been denied a right, privilege, or benefit as a result of the information sought.
- Exemption (k)(3): Pertain to the protection of the President of the United States or other individuals pursuant to section 3056 of Title 18.
- Exemption (k)(4): Required by statute to be maintained and used solely as statistical records.
- Exemption (k)(5): Investigatory material used only to determine suitability, eligibility, or qualifications for federal civilian employment or access to classified information when the material comes from confidential sources.
- Exemption (k)(6): Testing or examination material used to determine the appointment or promotion of federal employees when disclosure would compromise the objectivity or fairness of the process.
- Exemption (k)(7): Military evaluative records (similar to (k)(5)).
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Third-party records access
The Freedom of Information Act (FOIA) allows individuals to request access to information from federal agencies. However, not all records are required to be released under the FOIA, as there are nine exemptions from disclosure to protect against certain harms, such as an invasion of personal privacy or harm to law enforcement investigations.
Similarly, the Privacy Act prohibits agencies from making discretionary FOIA releases of Privacy Act-protected records, such as personnel and medical files or law enforcement information that could invade personal privacy.
In the United States, the classification of information maintained by third parties ranges from highly private to not private. Legislatures, courts, and administrative agencies should carefully consider regulations on law enforcement access to such information.
In the United Kingdom, the police can share personal data for law enforcement purposes, such as to prevent, investigate, detect, or prosecute criminal offenses, or to safeguard against threats to public security. The police must have at least one of these law enforcement reasons as the main reason for sharing the data.
The Data Protection Act 2018 requires that sharing personal data for non-law enforcement purposes be "authorised by law," meaning that the competent authority has a legal obligation or power to share the data.
In California, the California Consumer Privacy Act (CCPA) exempts certain businesses, such as consumer reporting agencies and financial institutions, from its definition of data brokers, who collect and sell personal information. The CCPA also exempts publicly available information from federal, state, or local government records, such as professional licenses and real estate records, and certain types of information, such as medical information.
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Surveillance tech companies
The Privacy Act of 1974 prohibits law enforcement agencies from disclosing personal information unless it is in response to a FOIA request that is not exempt under the Act. However, courts are divided on whether publicly available or previously published information constitutes a "disclosure" under the Act.
Some of the top surveillance companies in the United States include Oco Group, Spot Security Swarms, DroneTechUAV Corporation, INOVA DRONE, Camvi, Scylla, and PerVista. These companies offer a range of products and services, from smart home monitoring cameras to AI-powered threat detection systems.
Video surveillance software is also a growing industry, with companies like Hikvision, Genetec, and Verkada dominating the market. This technology is used by a variety of industries, including access control, CCTV, and security.
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Data brokers
Currently, there is no federal law in the United States that regulates the data broker industry, allowing them to invade private lives, spy on families, and gather personal information for profit. This has led to serious concerns about the government's ability to obtain vast amounts of personal information from data brokers, including information that would normally require a warrant, court order, or subpoena to obtain.
To address these issues, the Consumer Financial Protection Bureau (CFPB) has proposed a rule to ensure that data brokers comply with federal law and address critical threats from their current practices. The CFPB's proposal aims to protect consumers' personal identifiers, treat data brokers like credit bureaus, and reduce the flow of personal information to and from data brokers.
Some states, such as Vermont and California, have also taken steps to regulate data brokers by requiring them to register annually and provide information about their data collection practices and opt-out policies. However, stronger regulation is needed to restrict the buying and selling of Americans' personal data.
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Frequently asked questions
Yes, law enforcement agencies can access personal data without consent by using geofence warrants, which allow them to collect device information from individuals present at a specific location and time. They also employ surveillance tech companies like Clearview AI and Voyager, which gather information from the internet and social media. Additionally, consumer tech companies like Amazon's Ring provide police with access to their Neighbors social network and facilitate footage requests.
Yes, there are regulations and standards in place, such as the Privacy Act, that govern law enforcement's access to and use of records held by institutional third parties. Courts, legislatures, and administrative agencies play a supervisory role in this process.
Information that is considered highly private, intimate, or likely to cause embarrassment or stigma if disclosed is generally restricted. This includes personnel and medical files, as well as law enforcement information that could invade personal privacy.
