As the federal government seeks to improve the digital divide between the rest of the nation and Native Americans, there is no denying that data brokers are poised to mine data from indigenous people unless legislation protects indigenous data sovereignty. 

Only about five in ten Native Americans with a computer have access to high-speed internet. In comparison, over eight in ten persons who do not identify as a member of an indigenous group have access to high-speed internet. This gapping digital divide is one of the issues the Biden-Harris administration seeks to close by injecting 65 billion dollars to improve internet infrastructure for low-income families as well as people living in rural areas and tribal communities. 

Between 2013 and 2020, the Census Bureau collected data about if and how people access the internet. Of particular interest is the unmistakable national gap in the subscription rates to high-speed internet between Native Americans (67 percent) and other Americans (82 percent). The American Indian Policy Institute (AIPI) at Arizona State University also conducted a similar study, and the results were largely the same.   

Dr. Traci Morris, Executive Director of the AIPI, says the figures are hardly surprising. The academic and policy advocate also pointed out that Native Americans living on tribal lands are the least connected and under-served demographic regarding access to the internet. According to Dr. Morris, the gap has been endemic for a long time. However, the coronavirus pandemic and subsequent lockdowns spotlight the reality of  access to digital technology for Native Americans.  

“People couldn’t get telehealth because we have this incredible divide in Indian Country,” said Dr. Morris. 

Dr. Morris is one of the few researchers examining the impact of the digital divide in Native American communities. In April 2021, she gave expert testimony about the state of broadband infrastructure in tribal lands during a hearing of the House of Representatives Subcommittee for Indigenous Peoples of the United States. Citing data from several surveys, Dr. Morris also noted that this disparity hinders American Indians’ access to education, health care, job opportunities, and even civic engagement. 

And to boot, a 2019 survey found that 1 in 3 Native American households depend on cellphones for various online activities. Still, most of these people depend on broadband at the local library or school to get online. While the internet infrastructure spending will indeed alleviate this digital divide, it raises another question: exposing the data of more Native Americans to data brokers. 

Data brokers are companies that collect data for profiling and monetizing the data harvested about customers. Monetization happens when the data brokers sell user data to companies seeking to target a specific demographic with advertisements about their products and services based on information about the user’s traits and online habits. 

Data brokers claim collection is anonymous, but evidence strongly suggests otherwise. For one, matching data to the owner is hardly a challenge for companies with the necessary tools— as Elizabeth Goiten of the Brennan Center for Justice pointed out in this article on the collection and exploitation of digital data. 

Social media companies are at the forefront of digital privacy concerns. For example, Facebook allegedly turned a blind eye and even enabled troll farms target over 400,000 Native American users with fake news and incendiary posts in the run-up to the 2020 election. There is also TikTok, which recently announced that it’ll soon start collecting user biometric data out of the blues. These companies, in themselves, largely use the data mined for a competitive edge, but there is no question about their position as data brokers —case in point: Cambridge Analytica

Yet, social media companies aren’t the only ones with a shovel, as the gold rush for digital data also extends to phone and internet companies that create software that Americans rely on for their daily activities. 

These companies sell the data collected to data brokers, who, in turn, sell the data to government agencies and third-party search sites that monetize user data. In the past year, 4 in 10 adult Americans have reported seeing ads or messaged that are eerily based on their personal data, interests, and activities. To avoid the collection of personally identifiable information, many Americans use burner accounts and pseudonyms for their online activities. Another option is to contact the data brokers—to name a few: Intelius, PeopleFinders, and All People—directly to opt out of their databases and remove their information. 

However, these methods are inefficient compared to using a data removal service, such as DeleteRecords, to remove personal information from data brokers' databases and aggregate websites that leverage public record laws to compile and sell publicly available information on Americans. 

Per the American Declaration on the Rights of Indigenous Peoples, tribal governments exercise jurisdiction over their territories. And as technology extends the capabilities of individuals, it is only natural that tribal governments would seek equal access to the internet and communications technology for their people, even though these technologies will inevitably harness data. 

But how much control will tribal governments have over how that data is gathered, stored, and shared? Perhaps we can take a cue from the broadband plan: the government provides the funds for the broadband plan, implementation will be by contractors, which are in turn supervised by individual states and territories. 

Dr. Desi Rodriguez-Lonebear proposes indigenous data sovereignty as a solution—and authors a book on the same topic. According to Dr. Desi Rodriguez-Lonebear, since tribes are self-governed, they also have the right and ability to develop their own systems for gathering and using data by third parties. 

After all, the current system does little to protect American data, and existing laws don’t apply to modern companies and data brokers. For instance, the Electronic Communications Privacy Act limits data collection and disclosures by companies in communications and computing services. However, the language of the law is largely applicable to compares operational when Congress enacted the law in 1986. Consequently, modern data collection companies have a field day skirting the law and selling the information they mine.  

In an era where government policy is data-driven, data should be collected to reflect the privacy and value systems of Native Americans. Furthermore, indigenous people should have a right to opt into data collection systems that prioritize and recognize their sovereignty. 

After all, third parties may access federal agency data under the Freedom of Information Act (FOIA) unless statutorily exempted, and there is no explicit exemption of information obtained through federal-tribal relationships.