'If You Can Keep It': Privacy Protections Under The Trump Administration

0:00This message comes from Bloomberg. Odd Lots is a podcast that explores the most interesting and relevant topics in finance, markets, and economics. Join the conversation with Joe Wiesenthal and Tracy Allaway every Monday. and Thursday. Listen to Odd Lots wherever you get your podcasts.

0:24Is the Trump administration creating a centralized database that tracks the activities of Americans, Americans who are not suspected of committing a crime? That's the question at the heart of a new lawsuit filed against the administration by the Freedom of the Press Foundation. That's an organization advocating for press freedoms. The allegations stem from an executive order signed by President Trump last year encouraging data sharing between federal agencies and the elimination of, quote, information silos. In the last year, the Trump administration has loosened restrictions around the CIA's access to law enforcement data.

1:00It's also allowed immigration and customs enforcement to access Medicaid data and given ICE access to data from the Internal Revenue Service. These instances of data sharing between agencies have led to court battles and raised concerns over the amount of access the federal government has to our personal data and what they're doing with it. I'm Jen White. And I'm Todd Zwillick. You're listening to the 1A Podcast. Today for our weekly politics series, If You Can Keep It, we ask, is the U.S. creating a centralized database of Americans? What do we know? And why are privacy experts concerned? We'll be back to answer these questions and more after this short break.

1:39Stay with us.

1:44This message comes from Bloomberg. Odd Lots is a podcast that explores the most interesting and relevant topics in finance, markets, and economics. Join the conversation with Joe Weisenthal and Tracy Alloway every Monday and Thursday. Listen to Odd Lots wherever you get your podcasts. Welcome back to the 1A podcast and our weekly series on the state of our democracy, if you can keep it. Let's begin our conversation by meeting our guests. In studio with us today is Lauren Harper. She's the Daniel Ellsberg Chair of Government Secrecy at the Freedom of the Press Foundation. Lauren, welcome back. Thank you.

2:19And Jake LaPerruc is with us. He's the Deputy Director of the Security and Surveillance Project at the Center for Democracy and Technology. Jake, it's great to see you. Hi, great to be here. So, Lauren, your organization, the Freedom of the Press Foundation, filed a Freedom of Information Act lawsuit against the White House over this executive order on data sharing. Just explain what's behind the lawsuit. So the lawsuit is actually against OMB. The lawsuit goes back to one of the requirements of this executive order is it required every single federal agency to submit to the Office of Management and Budget a report outlining which regulations they were either going to eliminate completely or change to expand this data sharing.

2:59And so we filed a FOIA request with OMB for these reports because while we've seen some of these isolated stories that you both highlighted, what we still don't have is kind of a blueprint for what the agency or what the administration is going to do with all this data. So we filed a FOIA request with OMB. OMB predictably ignored the FOIA request. So we are taking them to court. We're represented by Free Information Group in this matter. And our goal is really to compel the government to show Americans what they're doing with this data. Jake, it might be helpful to understand the current laws around data sharing between federal agencies.

3:35Explain that. So there's a variety of laws. There's some comprehensions like the Privacy Act, which largely governs how government can share out private information to the public but also between agencies. Also, a lot of agencies have their own specific rules and limits. So you mentioned the IRS before and sharing of tax data. There are specific laws on the books that limit how tax data can be shared out even with other components of federal law enforcement. Those are laws that were put in place to respond to Nixon or abuse of these various authorities in attempts to weaponize data that was being held by the federal government.

4:10So weaponizing data, Lauren, why are information silos important to regular people? People would recognize the phrase – we heard a lot about information silos after 9-11 from a national security standpoint. like, hey, let's have the FBI better communicate with the CIA or defense so that we can thwart terrorism. That's different than individuals, individual privacy. So data silos and how it affects us as everyday Americans, what are they and why are they important? Sure, absolutely. And I actually think that one of the reasons this executive order kind of flew under the radar when it was issued was because, you know, at passing glance, perhaps eliminating information silos sounds like a reasonable thing.

4:51But the reason they're important gets back to the passing of, as Jake mentioned, the Privacy Act. The Privacy Act was passed in 1974, and it was born of abuses from the Watergate era. So what the Privacy Act really intended to do was to set up a firewall between an abusive government and your data. So what happened, one of the things the Privacy Act did is it codified something called purpose specifications. So that meant when an agency collected your data, it had to be upfront about what it was going to do with that data. And if it shared that data, it had to be for the original intended purpose.

5:24So that means your IRS data stays with the IRS, your data with Medicaid stays with Medicaid. And that means basically that other agencies or other actors within the government can't go rooting around in that data. And not only is that good for your personal privacy, it's good information security. Because if you have a breach at one agency, like Medicaid, for example, it's only that data at that administration that's called into question. But if you have centralized access or increased access to all this data across different agencies, then you get a real identity theft nightmare if there's a similar kind of breach.

5:59Well, Jake, I wonder if you could describe how the information landscape has changed over the past several decades, because we're talking about companies now that collect and mine our private data from social media sites and websites we go to, do the law stand up to the current information environment? Quite simply, no. I mean, there's just a lot more information and data out there than there was before. And alongside that, there's a lot more capacity to sift through and use data at a large scale in a way that just was not possible to people even a decade ago through just human means that now through automation, AI technologies, big data mining, analytics, there's huge capacity to sift through and find individual pieces of data or to take all these myriad components of data, trends or information about individuals across different types of data and sectors, and paint a very clear picture about them from that and do it with very little human effort.

7:01The ability to sift through massive amounts of data that Americans are carrying and providing in their pockets all the time. We have to talk about Palantir. We have to talk about Flock. People have maybe heard of these two companies. They're just two examples. Now, Palantir focuses on data analytics. They have a$900 million total of federal contracts in 2025, including$30 million contract with ICE. Then there's Flock, who people have probably heard about lately. They've been in the news. They're an Atlanta-based tech company. They focus mostly on automated license plate readers. They say they don't share data directly with the federal government.

7:41But according to a report from October by the University of Washington, while at least eight local law enforcement agencies in Washington state enabled one-to-one sharing of their flock network with federal law enforcement at some point, U.S. Customs and Border Patrol has access to license plate data. You see where this is going. These companies have enormous ability to collect, scoop, aggregate data, and make it really, really useful to whoever has the money to buy that product. How much transparency is there about these private companies like Palantir, like Flock, and how their data is being used by the federal government, Lauren, right now?

8:21Yeah, you know, quite frankly, there's not enough. And I will say it's really simple. If the government wants to track you, they should have a warrant to do it and not just using kind of a federal agency credit card to establish a relationship with a private company to access that data. And companies like Flock, troublingly, are in kind of a legal gray zone. They've built this network, as you said, of private license plate readers and collect billions of data points of Americans throughout their daily lives. And then when agencies like CBP and ICE, which do get access to this data, this has been revealed through public records requests in Illinois, you know, it allows the government to integrate this private data into a federal framework, and basically it allows the government to have granular access and views of our lives that would be legally impermissible any other way.

9:13We reached out to Flock for comment on the type of data sharing between the company and the federal government and for comment on research that Flock data was used to aid in federal immigration enforcement. We received this statement, it reads in part, quote, Flock does not share data on behalf of customers. Agencies own and control their data and decide how it's shared. Agencies can opt to share one-to-one within a geographic radius across statewide or nationwide networks or not at all. It goes on to say, quote, any sharing with federal law enforcement must be done on a one-to-one basis. Federal agencies are not part of statewide or nationwide networks.

9:49And finally, quote, Flock does not have any contracts with ICE or any DHS sub-agency, end quote. You can find the full statement from Flock on our website, the1a.org. So Jake, just interpret that for us. What they're saying is that they don't have a direct relationship with the federal government. They don't as of now, although there have been some trouble Flock has gotten into for providing access to DHS entities for pilot programs they've run. Another common problem that happens in this field is that sometimes local law enforcement who might be coordinating with ICE or receive kind of an informal request can run a search on their behalf.

10:28And there's been a lot of instances of that where there'll be a quarry from a local law enforcement and the reason listed is something like immigration enforcement or ICE or immigration. There's also, you know, just beyond this issue of federal entities also though, interstate sharing issues. And this is something that's come up a lot in the reproductive health surveillance space where, you know, law enforcement entities from states with bans of abortion have conducted pings and tried to find vehicles that might be moving out of state to receive out-of-state reproductive health care. We got this question from Brett who emails, why all the uproar about government ownership of private data, but not a peep about corporate ownership of private data?

11:06Lauren, curious to hear where you see the distinction between the two. Well, I mean, I also don't like all this corporate ownership of private data either, but I will say that one of the particular issues with the federal government is that unlike private companies, it is supposed to be constrained by the Constitution and the Fourth Amendment. And what we're seeing, well, all the amendments, but what we're seeing the federal government do is bypass these constitutional limitations with these cooperations with private companies. And also, when we're talking about private companies, we often click that I agree button that says, here's my data.

11:45The old TOS, terms of service. So Lauren, the lawsuit that your organization filed over the elimination of privacy protections for data sharing between agencies is currently ongoing. When federal agencies get access to big troves of third-party data, how does that affect privacy protections? We might click a term of service with a company that we do business with, probably don't read them all the time, probably should, but it's too much fine print. Then the government with its power comes in and gains access to that data through an agreement of their own. And where does that leave us, the public, the consumer?

12:24Yeah. One of the things I'll say, and it's worth reinforcing when we're talking about AI, particularly under the hands of this administration, but frankly, it's a threat under any administration, is AI, the tools that people use to sift through this data, can't make an independent judgment, and it's not going to refuse an illegal order to search through information. It's not going to raise its hand and say, oh, this violates the Privacy Act. I'm not going to conduct that search for whatever reason that you're inputting it. And I will say that the one thing that we really know about this particular administration is that it mishandles our data.

12:58So while we don't know exactly what the intent of the White House is with this interconnected data. We don't have to guess too much. All we really have to do is look at DHS because DHS is really, I would say, the playground for what the administration wants to do with its expansion of surveillance capabilities and its sucking up of all of this personal data. So what we've seen DHS do, it has a$160 billion budget. It's spending quite a bit of this money on surveillance technology, including one of the agreements with Palantir, but it's also buying tools to track cell phone location and mine data.

13:35And one of the things that is happening along all of this is mission creep. So we're seeing these tools like Mobile Fortify, which is a facial recognition software, and its purchase was justified for being needed at the border. But what we're seeing is these technologies that are justified for being at the border are being employed further and further in the interior, and this is being normalized. And I would just add that at the same time that this is happening, agencies like DHS are firing privacy and FOIA officials who are lawfully releasing information about how these applications impact our privacy.

14:11Well, when you say this administration mishandles our data, give us just a couple of examples. Well, one of the things we certainly know is there is a story that came out earlier this month, March 10th, about a former Doge employee who was accused in a whistleblower complaint of walking out of the Social Security Administration with two thumb drives of millions of data points on Americans, including the master death file. This contains data on 500 million Americans living and dead, and they had the intent, allegedly according to this whistleblower complaint, to turn it over to a private contractor.

14:44We don't know if that was successful, but this really speaks to the dangers of expanded data sharing without these firewalls that were previously in place at agencies. Earlier this month, 130 organizations, including the Center for Democracy and Technology, signed a letter urging Congress to close the data broker loophole. This is part of the Foreign Intelligence Surveillance Act. Jake, first explain what is the act precisely? What does it do? So the Foreign Intelligence Surveillance Act is, at this point, sort of the sweeping authority for national security surveillance and foreign intelligence-focused surveillance.

15:18And that can be getting a warrant to try to wiretap or search the house of suspected spy or terrorist or foreign agent in the United States. But it also has grown, especially in the post-911 era, to encompass a whole variety of other national security surveillance tools, in particular what we call FISA 702, Section 702 of FISA, which is a warrantless surveillance authority that can be used to monitor the communications of practically any foreigner outside the United States. The targets have to be foreigners, but any communications they have, including if Americans, are swept up all without a warrant.

15:56And that's the area of FISA that's most at issue. And now there's a concern within FISA, as you mentioned, and people have heard that acronym before. It's been in the news a lot the last 15 years within FISA, the data broker loophole. What is that? So the data broker loophole is the general problem we face where law enforcement, typically to get that sensitive data, they need a court order. Quite often, especially for something like tracking your cell phone location, they, in fact, need a probable cause warrant. But because there are data brokers out there, there's this whole private market of data ecosystems, law enforcement and intelligence agencies say, well, instead of getting a court order, I'm just going to go buy this.

16:33I can buy my way around the court requirement. I can get cell phone location information, communications metadata, web browsing data, all other kinds of data. And instead of going into a court and getting a warrant, I can just buy it. Lauren, what is the ultimate concern? And I can hear people listening to our conversation and saying, well, couldn't this potentially make us safer if the government knows what everybody's doing, where we're going, what websites we're browsing? What is your concern? It wouldn't make us safer. And I just want to clarify that Jake and I are talking about two sides of the same coin.

17:11We're talking about expanded surveillance, warrantless surveillance of Americans with increased access to that data. And one of the concerns with this is the chilling of political participation. Because if you know that you are being watched and you're not entirely sure what the government is going to do with that data, that's going to impact how you behave. It might impact whether or not you go to a no-king's protest. It might impact what kind of doctor you go and see. And when you get to the point where you are looking over your shoulder when you are exercising your First Amendment rights, that means you don't have those rights in the first place.

17:43That is the major issue here. Well, still to come, how is artificial intelligence being used to comb through data collected by the federal government? And what security concerns do these AI tools raise? We'll be right back.

17:59This message comes from Bloomberg. Odd Lots is a podcast that explores the most interesting and relevant topics in finance, markets, and economics. Join the conversation with Joe Weisenthal and Tracy Alloway every Monday and Thursday. Listen to Odd Lots wherever you get your podcasts. Let's get back into our conversation. At a hearing earlier this month, Democratic Senator Ron Wyden of Oregon asked FBI Director Cash Patel if he would commit to not purchasing Americans' location data. Here's what he said. The FBI uses all tools, Senator. Thank you for the question, to do our mission. We do purchase commercially available information that's consistent with the Constitution and the laws under the Electronic Communications Privacy Act.

18:43And it has led to some valuable intelligence for us to be utilized with our private and partner sectors. Lauren Harper, what do you hear in that answer from the director of the FBI? I hear an excuse that the government has said over and over again, which we are doing this constitutionally questionable thing, and it has proven success rates. Well, that is not the case. You know, we saw folks at the NSA in the post-Snowden leaks say that their bulk collection of American data kept us safer. But when you press down and you demand examples of that, you don't get it. So what I'm seeing is the FBI relying on this crutch without ever having to really prove it and why they're going after this data without a warrant.

19:21Well, we reached out to the DOJ for comment on FBI purchasing of data and what guardrails exist to make sure that data is used appropriately. We did not receive a response, but we'd still love to hear an answer. But let's gets to this larger question about how much we know as Americans about the data the country is keeping on us, the federal government is keeping on us. We got this from Nina, who emails at the suggestion of my representative, Democratic Rep Jamie Raskin of Maryland. I submitted a request to Doge and the United States Digital Service one year ago, asking for the information about me it had collected and shared with other agencies.

19:58Of course, I haven't received a response. I'm wondering if requests like this and FOIA requests have always been routinely ignored, or is this a new thing under this administration? And Lauren, you're chuckling, but I'd love to hear your response. FOIA has never lived up to its promise. Anybody who files a FOIA request knows that agencies typically are pretty delayed in their response. That said, yes, it has gotten worse under this administration. And I would be remiss if I didn't say that, you know, as we're talking about the kind of data that the government collects on us at the same time, we're getting less information from the government.

20:33One of the things that happened recently at DHS in particular is after the agency made a lawful FOIA release to a media company called 404 Media, and this release was a privacy threat assessment of the agency's use of Mobile Fortify. Now, this is an application that people might have heard of, and it basically collects your facial recognition technology. It connects other biometrics. And one of the things this privacy threat assessment said is that the agency was going to keep it for 15 years. This data that it had collected without a warrant that's used across the country for 15 years. Now, this was released lawfully through FOIA and released to a media company.

21:14And this so outraged the political leadership at DHS that they fired officials in the privacy office, as well as the lead FOIA officer at CBP. And the other thing that they did was they said, you know what, essentially, we're going to make it impossible to release this kind of information in the future. So these privacy impact assessments and things like that, even if they're signed, mark them as a draft, which makes it even more difficult for them to get released. By definition, if something is a draft, it is final. So FOIA has never worked the way that it should, but it is coming under increasingly attack under this administration, especially at places like DHS.

21:49So, Jake, where does data like the kind collected by Mobile Fortify that Lauren just mentioned, where does it end up once they collect it? It really depends on the nature of the data. Sometimes it's held within a single agency. Sometimes it's available cross-agency or to something like DHS to subsidiary agencies across ICE, CPB. But it really depends on the situation. And quite often we don't have the basic insights into what's being collected or what kind of access exists there. So to go to the data broker loophole, for example, despite efforts from privacy advocates, we have no idea how much, how many Americans' data is being purchased by entities like the FBI, by CPB, by ICE.

22:32We don't know how many taxpayer dollars are being spent on this annually. We don't know any of the basic info about that type of thing. And quite often for surveillance, it's a spy first and ask forgiveness later mentality. Well, and Lauren, there's this concern about the creation of a centralized database of Americans' information and activities. Tell us more about that. That is the biggest concern with this executive order. We don't know exactly what this centralized database could be used for, But the immediate concern that privacy advocates noted was that it could be used for the creation of dossiers on citizens, for example.

23:13And even if you think perhaps this is a little bit hyperbolic of a concern, the one thing that it definitely does is it creates a single point of failure for bad actors either inside the government or without it. Because as I mentioned before, one of the most important things about keeping data segregated and in different buckets is for information security. So it really creates a giant honeypot for bad actors, either within the government or without it. And again, I think if we want to see where the White House and the Trump administration would really want to go with a database like this, we just need to look at DHS.

23:49And I'd also add that, you know, once this database exists, like anything else, once the government has this tool, no matter who is in office, it's going to be extremely difficult to unwind it. Once it exists, it exists. And it puts us on the back foot when countering the types of abuses that this kind of database would enable. And Jake, when you think about surveillance historically in the U.S., are there other examples you can point to that sort of lay out what happens when the U.S. surveils its citizens? I mean, history is replete with examples of if surveillance is not properly checked, it leads to abuse.