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Police skirt privacy laws by using data brokers

Buying records is quicker than subpoenas but raises concerns
TED BRIDIS and JOHN SOLOMON
The Associated Press

Federal and local police across the country have been gathering Americans' phone records from private data brokers without subpoenas or warrants.

These brokers, many of whom market aggressively on the Internet, have broken into customer accounts online, tricked phone companies into revealing information and sometimes acknowledged that their practices violate laws, according to documents obtained by The Associated Press.

Legal experts and privacy advocates said police reliance on private vendors who commit such acts raises civil liberties questions.

Those using data brokers include agencies of the Homeland Security and Justice departments – including the FBI and U.S. Marshals Service – and municipal police departments in California, Florida, Georgia and Utah. Experts believe hundreds of other departments frequently use such services.

"We are requesting any and all information you have regarding the above cell phone account and the account holder ... including account activity and the account holder's address," Ana Bueno, a police investigator in Redwood City, Calif., wrote in October to PDJ Investigations of Granbury, southwest of Fort Worth.

An agent in Denver for U.S. Immigration and Customs Enforcement, Anna Wells, sent a similar request on March 31 on Homeland Security stationery: "I am looking for all available subscriber information for the following phone number," Ms. Wells wrote to a corporate alias used by PDJ.

Congressional investigators estimated the U.S. government spent $30 million last year buying personal data from private brokers. But that number probably understates the breadth of transactions, since brokers said they rarely charge law enforcement agencies.

A lawmaker who has investigated the industry said Monday he was concerned about data brokers.

"There's a good chance there are some laws being broken, but it's not really clear precisely which laws, said Rep. Ed Whitfield, R-Ky., head of the House Energy and Commerce investigations subcommittee that plans to begin hearings today.

Documents gathered by Mr. Whitfield's committee show that data brokers use trickery, impersonation and technology to gather phone records. "They can basically obtain any information about anybody on any subject," Mr. Whitfield said.

James Bearden, a Texas lawyer who represents four such data brokers, likened the companies' activities to the National Security Agency, which has also surreptitiously compiled the phone records of some Americans.

"The government is doing exactly what these people are accused of doing," Mr. Bearden said. "These people are being demonized. These are people who are partners with law enforcement on a regular basis."

Larry Slade, PDJ's lawyer, said no one at the company violated laws, but he added, "I'm not sure that every law enforcement agency in the country would agree with that analysis."

PDJ always provided help to police for free. "Agencies from all across the country took advantage of it," Mr. Slade said.

The police agencies told The Associated Press they used the data brokers because it was quicker and easier than subpoenas, and their lawyers believe their actions did not violate the Fourth Amendment's guarantee against unlawful search and seizure.

None of the police agencies interviewed by AP said they researched their data brokers to determine how they gathered sensitive personal information. Privacy advocates bristled over data brokers gathering records for police without subpoenas.

"This is pernicious, an end run around the Fourth Amendment," said Marc Rotenberg, head of the Washington-based Electronic Privacy Information Center, which advocates tougher regulation of data brokers. "The government is encouraging unlawful conduct; it's not smart on the law enforcement side to be making use of information obtained improperly."

Legal experts said law enforcement agencies would be permitted to use illegally obtained information from private parties without violating the Fourth Amendment as long as police did not encourage crimes to be committed.

"If law enforcement is encouraging people in the private sector to commit a crime in getting these records, that would be problematic," said Mark Levin, a former top Justice Department official under President Reagan.

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