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.