Privacy

Lawmakers Look To Stop the Feds From Secretly Buying Your Private Data

A 2018 Supreme Court decision was supposed to protect your location data from federal snooping. That’s not what happened.

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A bipartisan group of lawmakers has introduced a bill to stop federal law enforcement from sidestepping citizens' privacy rights by secretly purchasing our personal data from third-party brokers.

In 2018 the Supreme Court ruled in Carpenter v. United States that the FBI violated a suspect's Fourth Amendment rights by tracking his cellphone without getting a warrant first. The majority opinion, written by Chief Justice John Roberts, concluded that "We hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through [cell site location information]."

In response to the ruling, federal agencies began looking for ways to just buy the information from brokers who were collecting it from third parties.

And so a group of privacy-minded lawmakers—including Sens. Rand Paul (R–Ky.), Ron Wyden (D–Ore.), Patrick Leahy (D–Vt.), and Mike Lee (R–Utah)—has introduced The Fourth Amendment Is Not For Sale Act. The bill prohibits federal law enforcement and intelligence agencies from attempting to bypass court order requirements by purchasing private citizen tech data from brokers or any third-party company that may have legitimately or illegitimately obtained the information.

In the past two years, we've seen the feds make this end run several times. In February 2020, the Wall Street Journal revealed the U.S. Immigration and Customs Enforcement purchased a commercial database full of cellphone tracking data (the very type of information the Supreme Court ruled was private) for immigration enforcement purposes. At the time, a Customs and Border Protection spokesperson said that while the database included tracking information, this was somehow different from the Supreme Court case because it didn't involve the use of cell towers to aid in the tracking, an argument that deliberately ignores the part of the decision that says that we have an expectation of privacy for records of our physical movements, regardless of the means used to access those records.

We've seen other signs of the feds purchasing our personal data. Last June the Wall Street Journal reported that the IRS had purchased access to cellphone location data in order to try to track down tax cheats. They apparently ended their subscription to the service after it failed to help them find any suspects.

The Fourth Amendment Is Not for Sale Act won't actually ban the purchase of this data, but it will require federal law enforcement officers to go get a court order, just as they have to do now if they want to force a phone service provider to cough up your information. It prohibits the use of this data as evidence if it's not legitimately collected. It also adjusts the rules of Foreign Intelligence Surveillance Act (FISA) courts to protect the private data of Americans abroad.

"The Fourth Amendment's protection against unreasonable search and seizure ensures that the liberty of every American cannot be violated on the whims, or financial transactions, of every government officer," Paul said in a prepared statement. "This critical legislation will put an end to the government's practice of buying its way around the Bill of Rights by purchasing the personal and location data of everyday Americans."

"There's no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider," Wyden said. "This bill closes that legal loophole and ensures that the government can't use its credit card to end-run the Fourth Amendment."

Wyden and Paul have been longtime bipartisan buddies in the fight to protect Americans from warrantless federal surveillance. A House version is expected to be introduced today by Reps Jerry Nadler (D–N.Y.) and Zoe Lofgren (D–Calif.).

The Senate version has several other notable cosponsors, including former presidential candidates Elizabeth Warren (D–Mass.), Bernie Sanders (I–Vt.), and Cory Booker (D–N.J.). A transpartisan group of tech and civil liberties organizations, including the American Civil Liberties Union, FreedomWorks, Demand Progress, the Due Process Institute, the NAACP, and Americans for Prosperity, have all signed on in support.

It's unfortunate that such a bill is even necessary, but given that federal officials argue that the Carpenter decision is about cell towers and not our overall data privacy, clearly it's needed.

 

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  1. So what happened to my private businesses? Reason’s stance has been unwavering that private businesses have no obligation to respect first amendment rights, even when the violation is done at the behest of government officials. Why is the 4th any different?

    1. You were correct when you said that “Reason’s stance has been unwavering that private businesses have no obligation to respect first amendment rights”. You went pretty wildly wrong when you added the strawman “even when the violation is done at the behest of government officials.”

      Reason (and everyone else with a smidgen of sense) knows that when private businesses do things at the behest of government, they become government agents and inherit the government’s constitutional constraints.

      So:
      Government censoring speech – bad and unconstitutional*
      Twitter censoring speech – bad but not unconstitutional
      Government twisting Twitter’s arm to censor speech – bad and unconstitutional but often hard to prove

      * Government censoring its own speech (which often includes its employees’ speech) could be good, could be bad but is not unconstitutional.

      1. Government twisting Twitter’s arm to censor speech – bad and unconstitutional but often hard to prove

        Ah, yes, the hard to prove exception to ‘Congress shall make no law’.

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      2. I don’t know where this one stands legally:

        Government buying private data for sale on the open market for an agreed-upon price in a non-coerced transaction with a private company who’s exercising freedom of association.

        1. It depends. Prosecutors argue that you no longer have any expectation of privacy over any information you “give” to a third party. And that idea makes some sense. If you rob a bank and hide the evidence in your house, the police can’t force a search of your house without a warrant. But if you ask your best friend to hold the evidence, the police don’t need your permission to ask your friend if they can see what you voluntarily left behind.

          Prosecutors go further and say that they don’t even need a warrant to force your friend to turn over whatever you left behind. They can demand that stuff on a mere subpoena.

          In modern life, however, you leave stuff in third-party hands in ways that can only vaguely be called “voluntary”. The Constitution does not require you to live like a penniless hermit to avoid the surveillance state. Carpenter was the first small step to reining in the third-party doctrine.

          1. Hmmm… Re-reading your question, I don’t think I answered it above. You asked about non-coerced sales. I think the answer there depends on a) the privacy promise of the company that sold the info to the government and b) the use to which the government puts that information.

            If your privacy promise says you won’t sell my information, you can’t sell it to anyone including the government. If you do so anyway, at the very least I have a breach of contract claim against you and maybe some claims against the government as buyer (for not doing due diligence to know that they were making an illegal purchase). You’d have to look to state-level privacy law to know what other rights you might have against the buyer’s use of that information.

            “Fruit of the poisoned tree” might prevent the government from using that information against you in a criminal action. It probably wouldn’t stop them from using it to market to you (such as Medicare enrollment ads). It might or might not stop them from using the information in a civil proceeding.

          2. It depends. Prosecutors argue that you no longer have any expectation of privacy over any information you “give” to a third party. And that idea makes some sense.

            From a practical sense, you don’t. Legally, I’ll let the lawyers figure that out.

        2. What about a case where a private political candidate buys private data for sale on the open market for an agreed-upon price in a non-coerced transaction with a private company who’s exercising freedom of association?

          1. Well, what was it… the 2012 election, Facebook willingly gave the Obama administration the data for the entire social network because “we’re on your side” (or so it was reported what facebook officials said to the Obama campaign officials). No one seemed to think that was illegal.

    2. Okay, I will grant that Robby has been pretty good about calling out the everyone for violating the principles of freedom of speech.

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  2. All those cops getting paid to get handjobs aren’t gonna jerk themselves!

  3. Facebook and Twitter, Google and Microsoft, Apple and Samsung, et al are just private firms and if they happen to slip some data out there or allow “contractors” to climb through their systems hey that’s just a private company doing bidness. So what if it’s a straw purchase made by the gubermint and the contractors just happen to know someone in intelligence and law enforcement.

    Somehow the collusion between trillion dollar mega corps, amoral billionaires, and toady government officials has to stop but honestly at this point I don’t think you can make that happen while senile Joe and his ragtag band of justice warriors are in charge.

  4. “The Fourth Amendment’s protection against unreasonable search and seizure ensures that the liberty of every American cannot be violated on the whims, or financial transactions, of every government officer,”

    Explain asset forfeiture again, please.

  5. Obviously, if Government is going to buy any of our personal data, there is no question in my mind that it should be done transparently…We should all opt for a Chinese Style Free Market Auction structure based on an n player infinite try format. I trust the Biden administration to find the best environment for this…

  6. It’s unfortunate that such a bill is even necessary,

    No it’s not. If angels ran the world such a bill might not be necessary. But they don’t and they never have and they never will and no one has ever pretended that they ever did.

    What’s unfortunate is that this legislation seems about 10 years too late. Where is the transparency? the oversight? the whistleblowing? the investigative reporting? the citizen muckraking?

    This seems like just one more loss of having a frozen legislature. Glad Wyden and Paul seem to take a personal interest in the issues but for chrissake shouldn’t there be entire caucuses and subcommittees exposing the manure to sunlight?

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