August 1, 2023 | By Nick Sibilla | Forbes |
Citing a need to close “major loopholes in federal privacy law,” Sens. Rand Paul (R-KY) and Ron Wyden (D-OR) reintroduced the Fourth Amendment is Not for Sale Act last week. If enacted, the bill would ban law enforcement and intelligence agencies from purchasing a wide range of personal—and potentially sensitive—data, including location tracking, social media activity, and search history records. A companion bill unanimously passed the House Judiciary Committee last month.
Multiple investigative reports have revealed that the Department of Homeland Security, the FBI, and the IRS, to name just a few government agencies, have all relied on private data brokers to purchase records that would otherwise require a subpoena, search warrant, or court order.
“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,” Sen. Paul said in a 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.”
For instance, in its 2018 decision, Carpenter v. United States, the U.S. Supreme Court ruled that cell-site location information (CSLI), which can track a person’s movements through their cell phones, was protected by the Fourth Amendment. “Before compelling a wireless carrier to turn over a subscriber’s CSLI,” Chief Justice John Roberts wrote for the court, “the government’s obligation is a familiar one—get a warrant.”
But according to a recently declassified report by the Office of the Director of National Intelligence (ODNI), “the same type of information on millions of Americans is openly for sale to the general public.” With a credit card instead of a warrant, agencies can acquire, access, and aggregate those cellular location records, alongside other forms of commercially available information.
By purchasing smartphone location or ad-tracking data, agencies could “identify every person who attended a protest or rally” as well as other “political, religious, travel, and speech activities,” the ODNI report continued. Moreover, while many records are initially “anonymous,” by combining those records with other purchasable data sets, the ODNI report found that agencies can easily “reverse engineer identities or deanonymize various forms of information.”
And since commercially available information “can reveal sensitive and intimate information about individuals,” that data can also be “misused to pry into private lives, ruin reputations, and cause emotional distress and threaten the safety of individuals.” As a comparable example, the ODNI cited “LOVEINT abuses,” or cases where government officials have spied on current, potential, or former romantic partners. “In the wrong hands, sensitive insights gained through [commercially available information] could facilitate blackmail, stalking, harassment, and public shaming.”
But under the Fourth Amendment is Not for Sale Act, law enforcement and intelligence agencies could no longer buy data or force data brokers to hand over records without a court order. The bill would also ban agencies from “illegitimately” obtaining data through deception, hacking, or in ways that would violate a company’s terms of service, contract, or privacy policy. Nor could agencies use purchased or illegitimate data as evidence in court.
The proposed reforms have a broad, bipartisan appeal. A 2020 Harris poll found that 77% of Americans believe the government should get a warrant to access the types of location data harvested and sold by data brokers.
“Americans of all political stripes know their Constitutional rights shouldn’t disappear in the digital age,” noted Sen. Wyden. “The bipartisan Fourth Amendment is Not for Sale Act puts protections against government agencies purchasing their data into black-letter law.”
Read the original article HERE.
