US Senate takes up bill banning government purchase of Americans’ data

Despite opposition from the White House and law enforcement agencies across the United States, a bipartisan bill that recently was passed by the House that would ban the government from buying Americans’ personally identifiable information (PII) from data brokers and aggregators, the bill suddenly is getting renewed attention in the Senate in the wake of a massive security breach that has put gigabytes of information on possibly millions of individuals at risk.

With the support of top Democrats who usually are in lockstep with the Democrat administration of President Joe Biden, the Fourth Amendment Is Not for Sale Act, which was passed in the House by a 219-199 vote, takes aim at closing the data-broker loophole in the law that allow governments to buy data they would otherwise need a warrant to obtain.

Data brokers are companies that buy, aggregate, disclose, and sell billions of data elements on Americans with virtually no oversight and little financial incentive to protect the data they collect.

First introduced in the Senate in April 2021, a nearly identical bill is now being reconsidered in the Senate after its companion bill was passed in the House. And it’s getting much closer attention now in the Senate since disclosure last week of the hack of the computer systems of Florida-based data broker National Public Data that compromised more than 200 gigabytes of nearly 3 billion records containing the PII of an unknown number of “U.S., Canadian, and British citizens.” It’s being described as the biggest breach of PII on record.

The information that government entities have long been able to buy from companies like National Public Data is data that’s been acquired by data brokers and aggregators from common applications, the “scrapping” of publicly accessible websites, and public and commercial databases, all without users realizing it. The data is then used by governments, law enforcement and tax agencies, prisons, even bounty hunters, to do things like track a person’s location without a warrant or probable cause — or even suspicion that anyone in the dataset had done anything wrong.

The Biden administration, however, is firmly opposed to the legislation, despite the strong support it’s received from ardent Democratic members of Congress. The White House, through the Office of Personnel Management, issued a Statement of Administration Policy that states “responsible access to, and use of, commercially available information is critical to scores of vital missions carried out on behalf of the American people, including: protecting our American personnel and capabilities; understanding the activities and capabilities of foreign governments like the People’s Republic of China; tracking the global shipment of deadly drugs like fentanyl; detecting dangerous cyber threats; assisting the victims of serious crimes like cyberattacks and child exploitation; assessing and disrupting terrorist activity; and more.”

Civil liberties and privacy rights organizations disagree. Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union, said, “The bipartisan passage of this bill is a flashing warning sign to the government that if it wants our data, it must get a warrant. We hope this vote puts a fire under the Senate to protect their constituents and rein in the government’s warrantless surveillance of Americans, once and for all.”

“It’s time for the Senate to close this incredibly dangerous and invasive loophole,” agreed the Electronic Frontier Foundation. “If police want a person – or a whole community’s – location data, they should have to get a warrant to see it. Every day, your personal information is being harvested by your smart phone applications, sold to data brokers, and used by advertisers hoping to sell you things. But what safeguards prevent the government from shopping in that same data marketplace? The U.S. government has been using its purchase of this information as a loophole for acquiring personal information on individuals without a warrant. Now is the time to close that loophole.”

“Americans of all political stripes know their Constitutional rights shouldn’t disappear in the digital age. The bipartisan Fourth Amendment is Not for Sale Act puts protections against government agencies purchasing their data into black-letter law,” said Democratic Senator Ron Wyden, who first introduced the bill nearly four years ago. “Even during one of the most polarized political environments of my lifetime,” the bill was passed in the House. There is a deep well of support for bolstering Americans’ privacy, and I will look for every available avenue to advance protections for Americans’ personal data.”

Wyden said, “Doing business online doesn’t amount to giving the government permission to track your every movement or rifle through the most personal details of your life. 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. This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment.”

“It’s more important than ever that our data is protected and not collected and sold to government agencies or anyone else,” added Democratic Senator Patty Murray. “Our bill is simple: it would make the government obtain a court order if they want to access someone’s online data – just as they are required to do if that data is held by phone companies or social media sites. We need to do a lot more to protect Americans’ privacy rights, and closing this legal loophole is an important step in the right direction.”

“No government entity should be able to buy its way around the Fourth Amendment,” said Free Press Action Policy Counsel Jenna Ruddock. “Requiring a warrant to access our private information not only protects our right to privacy but our freedoms of association, religion, and belief. The Fourth Amendment Is Not for Sale Act closes a legal loophole and ensures that law enforcement and intelligence agencies can’t do an end-run around the Constitution by buying information from data brokers that would require a warrant for the government to collect directly.”

Ruddock said “the privacy violations that flow from law-enforcement entities circumventing the Fourth Amendment undermine civil liberties, free expression and our ability to control what happens to our data. These impacts affect everyone who uses digital platforms that extract our personal information any time we open a browser or visit social media and other websites – even when we go to events like demonstrations and other places with our phones revealing our locations.”

National Fraternal Order of Police President Patrick Yoes and Executive Director Jim Pasco in a joint letter to Senate Majority Leader Charles Schumer and Minority Leader Mitch McConnell reminded them of their “strong and continued opposition to the bill, arguing that it “will have a devastating effect on the basic ability of law enforcement to conduct investigations into violent crimes like murder, kidnapping, terrorism, and other serious offenses.”

“The legislation,” they said, “would cut off access to vital investigative tools routinely used by law enforcement agencies every day – Constitutional tools that generate leads into crucial and often complex cases. Investigators do this by selectively using third-party data, which is widely available for use for a variety of purposes that have nothing to do with public safety. If Congress acts to impose a probable cause standard for this type of information, routine investigations will become arduous and time consuming – delaying justice for victims and increasing the expense of such investigations in time and resources. Investigations in which time is a factor – like kidnappings or human trafficking – will become almost impossible to solve, and lives will be lost if access to this data is lost.”

Yoes Pasco said, “the data accessed by law enforcement that this legislation would restrict is critical because it allows investigators to identify and pursue leads,” and that “these leads are used to gather evidence and establish probable cause for an arrest and prosecution.” But “without access to this type of data, investigators will not be able to ‘connect the dots’ – to see patterns and establish links between the crime and the perpetrator. By prohibiting access to this commercially available data, Congress would be tying the hands of law enforcement and greatly increasing the time it takes to conduct successful investigations into serious crimes.”

Yoes and Pasco decried legislators for ignoring the FOP’s “repeated offer to work with members of Congress to address genuine privacy concerns surrounding the availability of this information, without removing this vital tool from our law enforcement agencies.” They said, “to date, our offer has been ignored, and this lack of meaningful engagement and understanding of the value of these tools will jeopardize the ability of law enforcement to solve crimes and protect the public.”

The Fourth Amendment is Not for Sale Act:

• Requires the government to get a court order to compel data brokers to disclose data – the same kind of court order needed to compel data from tech and phone companies;
• Stops law enforcement and intelligence agencies buying data on people in the U.S. and about Americans abroad, if the data was obtained from a user’s account or device, or via deception, hacking, violations of a contract, privacy policy, or terms of service;
• Extends existing privacy laws to infrastructure firms that own data cables and cell towers;
• Ensures that intelligence agencies acquiring data on Americans do so within the framework of the Foreign Intelligence Surveillance Act and that when acquiring Americans’ location data, web browsing records and search history, intelligence agencies obtain probable cause orders; and
• Takes away the Attorney General’s authority to grant civil immunity to providers and other third parties for assistance with surveillance not required or permitted by statute. Providers retain immunity for surveillance assistance ordered by a court.

Article Topics

data privacy  |  data protection  |  legislation  |  U.S. Government  |  United States