In Law Enforcement’s Use of Commercially Acquired Information: How Can Congress Strike a Legislative Balance Between Privacy Concerns and National Security Risks in the Absence of Fourth Amendment Protections?, Susannah Gilmore tackles a timely and complex legal dilemma at the intersection of digital privacy, national security, and constitutional law. Gilmore argues that while the Fourth Amendment currently does not prohibit law enforcement’s warrantless acquisition of data sold on the open market, this legal gap exposes both critical vulnerabilities and strategic opportunities. The paper explores how the growth of the data brokerage industry has enabled government agencies to access sensitive personal information—such as location data, browsing history, and biometric profiles—without judicial oversight, raising serious concerns about civil liberties and democratic accountability. However, Gilmore also highlights the indispensable role that CAI plays in counterterrorism and counterintelligence operations, especially as foreign adversaries exploit the same data streams. She ultimately concludes that blanket legislative bans, such as the proposed Fourth Amendment Is Not For Sale Act, are premature and potentially harmful to U.S. security interests. Instead, Gilmore proposes a dual-pronged policy approach: first, enact robust regulation of data brokers and commercial data flows; second, implement tailored statutory safeguards to govern government use of CAI without undermining vital intelligence capabilities. Her analysis challenges the conventional framing of CAI as a legal “loophole” and reframes it as a governance issue requiring legislative—not judicial—intervention.
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