Nicole Plante (Yale University — Law School) has posted Surveillance Laundering: How Location Data Brokers Violate the Fourth Amendment, forthcoming in 33 Richmond Journal of Law & Technology (Fall 2026), on SSRN. Here is the abstract:
In 2018, the Supreme Court extended Fourth Amendment protection to cell site location information in Carpenter v. United States, determining that warrantless cellphone location tracking violated the Fourth Amendment. Shortly after Carpenter, government agencies began purchasing cellphone location data from data brokers. The government had found a loophole, buying location data from brokers, which allowed them to evade their constitutional obligations under the Fourth Amendment. Many recognize the danger this poses, but there has been little progress made in closing this loophole. The primary solutions call for legislative reform or increased oversight, but these solutions have made little progress. Where progress has been made, it is often full of exceptions and loopholes that data brokers exploit. Additionally, much of the progress that was made under the Biden Administration has already been undone under the Trump Administration. For these reasons, this Essay puts forth a judicial solution, applying the state action doctrine to data brokers to hold them accountable under the Fourth Amendment. Specifically, this Essay argues that when data brokers are exclusively designing, marketing, and selling location data to the government and work collaboratively with the government to use this data for law enforcement, their actions are reasonably attributable to the state. Thus, they are state actors and subject to the Fourth Amendment.
Recommended.
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