Criminal Justice & the Rule of Law Lawfare News Surveillance & Privacy

Modern Day General Warrants and the Challenge of Protecting Third-Party Privacy Rights in Mass, Suspicionless Searches of Consumer Databases

Jennifer Lynch
Tuesday, September 28, 2021, 8:51 AM

Published by The Lawfare Institute
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Today, more than ever, law enforcement has access to massive amounts of consumer data that allow police to, essentially, pluck a suspect out of thin air. Internet service providers and third parties collect and aggregate precise location data generated by our devices and their apps, making it possible for law enforcement to easily determine everyone who was in a given area during a given time period. Similarly, search engines compile and store our internet searches in a way that allows law enforcement to learn everyone who searched for specific keywords like an address or the word “bomb.” And DNA is now amassed in consumer genetic genealogy databases that make it possible for law enforcement to identify almost any unknown person from their DNA, even if the unknown person never chose to add their own DNA to the database. Modern law enforcement officials very frequently conduct “suspicionless searches”—searches that are not based on individualized suspicion—on these computer databases. This article describes the problem of suspicionless searches of consumer databases, explains the threat these searches pose to privacy interests, argues that the legal arguments put forth by law enforcement in defense of these practices are flawed and suggests what should be done about the problem, both in courts and in the legislature.

Jennifer Lynch is the surveillance litigation director at the Electronic Frontier Foundation and leads EFF’s legal work challenging government abuse of search and seizure technologies. She also founded EFF’s Street Level Surveillance Project. She has been awarded the Free Speech and Open Government Award and been named to the Daily Journal’s 2021 list of lawyers who “Defined the Decade” for her work on privacy and policing.

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