The practice of think-tankery provides one very little feedback. It’s a bit like shouting into the wind. One can’t be sure of being heard, and the winds of malign policy change can be very strong. 

So I was excited to read Byron Tau’s book, Means of Control: How the Hidden Alliance of Tech and Government is Creating a New Surveillance State, because of well-researched insights on an important issue, yes, but also because it mentions me! When I was on the Department of Homeland Security’s Data Privacy and Integrity Advisory Committee, a colleague once called me “the conscience of the committee.” Tau picked that up from a transcript, evidently, giving evidence of that deep research. And giving one insecure think-tanker hope that some utterances and ideas will survive the winds to land with people who make decisions, somewhere, anywhere.

Means of Control is a rich trove. It starts with the early days of what Tau calls “the hidden alliance of tech and government,” including some activities and reports of the committee on which I served. Familiar characters and stories for me might provide a good history for others of early influences in America’s data-oriented security machinations.

But the book’s focus and importance are in its documentation of the dissolute data environment created by the smartphone. Do we have to rehearse the benefits of having these gadgets? We don’t. But a significant cost of them is today’s gutter trade in personal data gathered from smartphone use that people have little practical means to prevent or control. Part of that trade is sale to government agencies that have used it to route around Fourth Amendment limits on searching for a person by tracking their location digitally. (Those limits are entirely clear after Carpenter v. United States, though I would have them held in place by different doctrine.)

A coterie of companies has sprung up over years to acquire, trade, and vend such data. One example is Venntel, the first company Tau as a Wall Street Journal reporter identified as a conduit of adtech data from the apps that collect it to the Department of Homeland Security (DHS). Tau is not sparing with the criticism of the company and its customer, DHS.

One product, developed through a partnership between Venntel and a company called Babel Street, was Locate X. That tool was strictly confidential. “In fact, Babel Street’s contracts explicitly said that Locate X’s data could never be mentioned in court records or introduced into legal proceedings as evidence,” Tau writes. That is part of a “playbook” by which cutting-edge surveillance technology is kept from public and court review, which might reveal that it is inconsistent with our values and our law. 

When the legality of using Venntel data came into question in September 2019, a DHS lawyer whom Tau names concluded that “DHS’s purchase of cell phone location data was consistent with the Fourth Amendment.” The theory was that “people had opted in and had been notified that their data might be used by government entities.” Tau concludes, “That was a lie.”

This book is not a polemic. I was relieved to find that Tau’s nod to digital dystopia polemicist Shoshana Zuboff did not color the work. Tau has identified a genuine problem for our information economy and earnestly reported on it.

At other times I have been nonplussed by criticisms of data brokerage. Parts of that industry make otherwise worthless personal information valuable as an input into product design and communications that make products and services better, easier to find, and less expensive—all consumer wins. But, as I’ve written, all is not sweetness and light with data brokering. 

The techniques by which data brokers acquire information are particularly worthy of consideration — and of introspection on the part of industry. Many systems, including smartphone apps, collect information and place it into the brokered data “stream.” To the extent the data is wrongfully collected through fraud, misrepresentation, unfair advantage, breach of contract, and so on, data brokers should not acquire, use, or sell it. The obligation is on them to know the full provenance of the data they have so they do not profit from others’ misdeeds.

Tau’s targets are very worthy of such examination—to say nothing of the US government buyers’ obligations to vet their use of personal information through democratic oversight systems and courts. I look forward to the day when contract and property rights in data are more clearly understood so that it is riskier for companies to ply governments with people’s data and for government agents to practice secret surveillance with it. Here’s hoping Byron Tau’s reporting survives the winds to land with people who make decisions.

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