Systematic government access to private-sector data in the United States

Following the September 11 (9/11) attacks, the mission of police and prosecutors expanded dramatically. Before that date, most law enforcement resources were allocated for the post-facto investigation or prospective prevention of specific crimes (like organized crime and drug trafficking investigations), with far fewer devoted to intelligence collection and threat detection to prevent an attack upon the homeland. After 9/11, however, law enforcement’s mission expanded to include, at times even prioritize, the general ‘prevention, deterrence and disruption’ of terrorist attacks, which presumed a new emphasis upon threat detection and identification though analysis of patterns in larger, less specific bodies of information. Moreover, after 9/11, law enforcement was integrated into a much larger intelligence gathering operation directed at ‘connecting the dots’ proactively, in order to avert the next terrorist attack. This new focus, spread across a broad range of federal and state agencies, has created a voracious appetite for information—data found most often in the possession of industry, given consumer use of new technologies to facilitate personal, social, business, and economic transactions. Indeed, the unprecedented amount of ‘third-party’ possession of information inevitably makes the private sector the most reliable and comprehensive source of information available to law enforcement and intelligence agencies alike. Notwithstanding the impacts on business costs or innovation— whether for a criminal or intelligence terrorism matter or more traditional crimes where perpetrators leave electronic fingerprints with a host of third parties—law enforcement, intelligence agencies and even legislators expect that industry third parties will facilitate real time government access to data when needed, and that these data will be in possession of the relevant private