“The commercial landlords of the buildings where tens of millions of Americans go to work every day can be forced to assist the government with surveillance,” she said. Unlike Verizon or Google, she noted, those entities often lack the ability to isolate individual messages, meaning they may have to give NSA personnel “direct access to their communications equipment and all the communications that run through that equipment, including purely domestic communications.”
James Czerniawski, a senior policy analyst at a free-market think tank, the Consumer Choice Center, called the expansion “way too expansive” and said it has “scripted a whole host of businesses into this surveillance apparatus that had no intention of ever being in there.” He noted that the Information Technology Industry Council, a major tech trade association, took the unusual step of publicly urging Congress to narrow the definition.
The panel also aired what has become known as the “data broker loophole”—the ability of agencies to buy location, browsing, and other sensitive data about Americans from private companies rather than obtaining it with a warrant.
“It happens constantly,” Goitein said, listing the FBI, Drug Enforcement Administration, Secret Service, Homeland Security, Defense Department, and IRS among agencies that have purchased cell phone location data. She noted that the Supreme Court has held that historical cell-site location information is protected by the Fourth Amendment when demanded directly, but that agencies claim they can buy the same data from brokers without a warrant.
Tolman said secrecy around those contracts and purchases makes it difficult for Congress or the courts to enforce any limits.
“Without being able to shed light on what they’re doing and who they’re contracting with, it’s very difficult to stop its use,” he said, calling for third-party reviewers and tighter guardrails on data purchases.
Czerniawski added that such reforms “will not end surveillance, nor will they prevent legitimate national security operations,” arguing that “the country will not go dark.”
