Thanks to that pesky Constitution, government isn't supposed to be able to spy on you without first obtaining a warrant.  

However, since that routine tends to get in the way of Big Brother's ambitions for building a mass surveillance state, many governments have resorted simply to outsourcing their snooping to the private sector instead. 

It shouldn't come as a shock to anyone that our cellphones are basically little more than Orwellian surveillance devices that track our behaviors, patterns and digital footprints virtually nonstop. From our browsing habits to real-time geographical locations, those minicomputers in our pockets are a treasure trove of information about our personal lives — and much of that information is commercially available to virtually any business, advertiser or organization willing to pay for it.

And governments are quite willing to pay for it. 

As The Nevada Independent recently reported, Nevada signed an agreement earlier this year with a software company that specializes in accumulating and selling the location data of mobile devices — allowing authorities to not only track individual devices in real time, but even profile someone's "patterns of life" by monitoring and analyzing such details over longer periods. 

According to the company Nevada partnered with, Fog Data Science, this location data can reveal everything from daily commuting routines to personal or professional "associations" among mobile device owners — information that can provide government with tracking and surveillance powers well beyond what it would otherwise be able to achieve without a warrant. 

Unfortunately, Nevada's partnership with such a tech company is neither new nor unique. 

U.S. Immigration and Customs Enforcement, for example, has used taxpayer money to access similar geolocation data to track down people suspected of being in the U.S. illegally. During the COVID-19 lockdown, the Centers for Disease Control and Prevention spent taxpayer money to monitor compliance with curfews and "movement restrictions" using information purchased from similar private-sector data brokers. 

The Defense Intelligence Agency purchased and accessed similar information multiple times within just a few years, and even the Internal Revenue Service resorted to such tactics as part of its tax compliance efforts — although that program was eventually terminated after lackluster results. 

On its face, the government's procurement of Americans' sensitive personal information on such a scale should be blatantly at odds with our Constitution's prohibition on warrantless searches. The Fourth Amendment, after all, guarantees that every person shall be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" — and a federal or state government digitally tracking an individual with enough granular precision to profile their "pattern of life" would certainly seem to fall into the category of "unreasonable" by most people's standards.

Indeed, in 2018, the Supreme Court even ruled as much, stating that law enforcement's ability to collect cellphone data without a warrant is nearly as limited as its ability to randomly enter our homes and rifle through our belongings. 

Unfortunately, authorities have concluded that a loophole exists when they purchase our private information from commercial data brokers rather than obtaining it directly from service providers. According to the creative minds in government agencies, the real problem with previous warrantless surveillance efforts was, apparently, the method of data collection rather than the Orwellian bastardization of personal privacy that was produced as a result. 

That rather limited view of the Fourth Amendment is worrisome for a host of reasons, not least of all because our digital data is routinely and easily sold by private companies with little oversight. Fog, for example, collects its data using the unique advertising ID numbers assigned to mobile devices — a technology that was ostensibly designed to help advertisers, businesses and app developers customize their products for consumers, not provide government an extra way to monitor its citizens. 

"Fog Data Science provides access to lawfully obtained, commercially and ethically sourced mobile advertising data that is anonymized and does not include personally identifiable information," Fog Chief Privacy Officer Mark McGinnis explained.

That's only partially true. While device information doesn't directly identify an individual, it doesn't take much legwork to determine whose phone belongs to whom when you have all the information brokers such as Fog provide. More important, however, is that while such details about individual devices might be lawfully obtained and commercially available, there's still plenty of debate over whether or not it's "ethical." 

After all, the selling and trading of such sensitive personal data can be invasive enough on a commercial level. And when governments get involved, serious civil rights concerns quickly begin to emerge. 

As we've already seen with government's mass digital surveillance elsewhere — from ongoing warrantless surveillance tactics stemming from the War on Terror to the indiscriminate use of automated license plate readers — such tactics rarely come with robust public oversight. For example, in 2013, the Las Vegas Metropolitan Police Department acknowledged it was using technology that could intercept and monitor text messages, phone calls and other mobile device activity throughout certain geographical areas — but virtually no meaningful details have been provided about how such technology has been used or what guardrails existed to keep it from being abused. 

It's an unavoidable fact that we live in a digital world where anonymity is increasingly rare and our personal data is treated as currency between technology companies, software developers and advertisers. However, even as we've unwittingly downloaded an Orwellian surveillance network right into our pockets with every app, game or system upgrade we put on our phone, we should still be able to expect our basic constitutional guarantees and protections to apply. 

Unfortunately, Big Brother has decided it can buy its way around the Fourth Amendment — and there are far too many data brokers and tech companies willing to make a deal. 

Michael Schaus is a communications and branding expert based in Las Vegas and founder of Schaus Creative LLC, an agency dedicated to helping organizations, businesses and activists tell their story and motivate change. He has more than a decade of experience in public affairs commentary, having worked as a news director, columnist, political humorist and most recently as the director of communications for a public policy think tank. Follow him on Twitter @schausmichael or on Substack @creativediscourse.