NPR recently reported on Immigration and Customs Enforcement agents doxxing protesters in real time, while 404 Media reported ICE agents are tracking people’s movements based on the things they’ve bought or what games they’ve played.
Department of Homeland Security elements — just like the Federal Bureau of Investigation, Drug Enforcement Administration and other federal law enforcement outfits — make massive use of commercially available data to do exactly what those aforementioned news outlets described. It’s a literal end-run around the Fourth Amendment.
Congress could have put a stop to this, and nearly did.
In 2024, the House passed the Fourth Amendment Is Not For Sale Act, or FANFSA, offered by Rep. Warren Davidson, R-Ohio. That bill would’ve mandated that federal agents get a warrant to obtain the kind of data mentioned in the reporting by NPR and 404 Media.
Sen. Rand Paul, R-Ky., attempted to attach FANFSA to the Foreign Intelligence Surveillance Act, or FISA, Section 702 extension that was also up for Senate debate in 2024.
That particular FISA program, enacted in 2008, allows the government to collect digital data from internet service providers and off the internet backbone, as long as U.S. citizens are the deliberate targets of the foreign intelligence collection. The problem is that your digital data still gets swept up “incidentally” in the process — and often searched without a warrant.
Unfortunately, Paul’s amendment was defeated and the Senate never took up FANFSA as a stand-alone bill, as the House had done.
The result is what we’re seeing right now: the federal government’s ability to purchase massive quantities of Americans’ personal data from private brokers.
With the proliferation of commercially available personal data — whether geolocation data, insurance claims and medical bills, airline passenger flight information or sexual orientation dating information — federal agents have another avenue to access your private information: buying it.
The sheer volume of personal data for sale to federal law enforcement — or even intelligence community elements — is staggering. When woven together with information federal agents already have access to — Social Security records, tax and banking records, firearms purchase histories, classified information sources and more — it becomes possible to track and even predict behaviors in what’s known as “pattern-of-life” analysis.
Now, however, the Section 702 program’s threat is dwarfed by the avalanche of commercially available data — and radically permissive DHS and Justice Department investigative policies on what agents are allowed to do with that data. The ability of federal agencies to get such data without a judicial warrant is how they get past the Fourth Amendment’s prohibition on warrantless searches.
ICE has used a “broad web of surveillance tools” to monitor and even intimidate Americans critical of its policies.
It should come as no surprise that such vast and unchecked investigative power has been abused. The failure to close the data-broker loophole has enabled President Donald Trump’s ICE and Customs and Border Protection agents to buy and use vast quantities of personal data not only to target illegal immigrants but also American citizens protesting federal agents’ brutality. As NPR put it, ICE has used a “broad web of surveillance tools” to monitor and even intimidate Americans critical of its policies.
Worse still, the FBI has access to the same commercial and government data sources and can use them to open investigations on individuals or groups guilty of no crime. Just weeks ago, Racket News investigative reporter Ryan Lovelace obtained a nonpublic, restricted January 2026 Government Accountability Office report revealing that the FBI had conducted “assessments” on more than 1,000 news outlets, political office holders and religious organizations. These warrantless investigations, which can involve confidential informants, physical surveillance and searches of government and commercial databases, expose the vast reach of modern federal surveillance. Section 702’s looming expiration gives Congress one more bite at the FISA reform apple. Eliminating the “data-broker loophole,” enacting a warrant requirement for any federal agent to access FISA Section 702 data on any American and banning the FBI from using assessments or any other warrantless investigative scheme to spy on U.S. persons should be the three key objectives of congressional surveillance reformers. These aren’t far-fetched goals. Many members of Congress have previously voted against Section 702 reauthorization and for passage of FANFSA. The expiration of Section 702 provides a rare legislative moment. Lawmakers should not focus narrowly on one formal surveillance authority while ignoring the unchecked bureaucratic and commercial powers that allow government agents to surveil Americans with minimal or no judicial oversight. Our privacy and constitutional rights should not be up for sale — at any price.
Patrick G. Eddington
Patrick G. Eddington is a senior fellow at the Cato Institute. He is a former CIA analyst and ex-House senior policy adviser and the author of "The Triumph of Fear: Domestic Surveillance and Political Repression from McKinley through Eisenhower." 
