Legislation that would ban law enforcement and federal agencies from buying consumer data from data brokers without a warrant is on its way to the full House after a committee this week unanimously passed the proposed law, a rare example of bipartisan cooperation in Congress and an indication of the broad concern about the wide availability of personal information.
The Judiciary Committee’s passage of the Fourth Amendment Is Not For Sale Act drew broad praise from civil liberties groups and privacy advocates that have been loudly critical of what they say is a way for federal agencies to get around the Fourth Amendment, which protects citizens from warrantless searches.
It also dovetails with an amendment to the Defense Department spending bill–the Davidson-Jacobs amendment–that puts similar restrictions on buying personal data by the Pentagon.
Jake Laperruque, deputy director of the Center for Democracy and Technology’s (CDT) Project on Security and Surveillance, lauded House representative for reintroducing and then passing the Fourth Amendment Is Not For Sale Act, calling it “fantastic news for privacy rights and shows strong momentum building for broad surveillance reform on a host of issues.”
“We don’t let police pay a phone company to install a wiretap instead of getting a warrant from a judge to place the wiretap,” Laperruque said in a statement. “It’s long past time to close this loophole and stop police from buying their way around the warrant requirement for our sensitive location and browsing data.”
The Reintroduction of the Legislation
The bill was first introduced in 2021 by Sens. Ron Wyden (D-OR) and Rand Paul (R-KY) and reintroduced in the House committee by a bipartisan group that includes the ranking Democrat, Rep. Jerry Nadler (D-NY) along with three other Democrats and four Republicans.
In a statement, Nadler said that “the government should not be allowed to purchase its way around the rules Congress has enacted to protect the privacy of American citizens. There is no end run around the Fourth Amendment.”
Rep. Ken Buck (R-CO) said U.S. citizens should be free of unreasonable searches and seizures by the government, including “buying their private telecommunications data.”
The Fourth Amendment protects a citizen’s privacy by requiring law enforcement and other government agencies to get a warrant approved by a judge before they can seize data or other evidence. It’s been a flashpoint in recent years as more consumer data becomes available online.
Controversy Around Data Brokers
Data brokers aggregate the mountains of data available in public records–court and driving records, marriage and drivers’ licenses, birth certificates and bankruptcy records–analyze it, and then sell it to businesses, people and government agencies.
Given the amount of data these brokerages collect, the relatively unregulated nature of the industry, and the fact that so much personal information is for sale, data brokers have faced harsh criticism from civil rights and privacy advocates.
“Data brokerage is a threat to Americans’ civil rights, consumers’ privacy and well-being and U.S. national security,” Justin Sherman, Senior Fellow and research lead of the Data Brokerage Project at Duke University’s Sanford School of Public Policy, testified at a hearing in April before the House Committee on Energy and Commerce. “The entire data brokerage ecosystem–from companies whose entire business model is data brokerage to the thousands of other apps, advertisers, tech giants and companies that collect, buy, sell and share Americans’ personal data–profits from unregulated surveillance of every American, particularly the most vulnerable.”
Change is Coming
The issue has come to the forefront in recent months. Most recently, Avril Haines, director of national intelligence, last month referred to a report from January that found that agencies within the federal intelligence committee (IC) routinely buy personal information from data brokers. At the same time, the lines are blurry, the report noted, with such information widely available but are a relatively new and “increasingly significant part of the information environment in which the IC must function.”
Also playing a role is the ongoing and largely partisan debate about the Foreign Intelligence Surveillance Act (FISA) and the renewal of Section 702, which allows intelligence agencies to collect data on foreign intelligence interests with communications that run over U.S. infrastructure, such as cell towers and wireless networks.
The House legislation addresses the issue from several angles. Among other steps, it requires investigators to get court orders to force data brokers to disclose data–similar to what is needed when dealing with tech and phone companies–stops agencies from buying data that was obtained from a user’s device or account or through hacking (singling out Clearview AI, which last year was banned from selling its facial recognition technology to most businesses) and extends privacy laws to companies that own cables and cell towers.
What the House will do with the bill now is uncertain. However, Wyden said he will include “essential elements” of the bill in a surveillance reform bill in the Senate for Congress to consider as members debate reauthorizing Section 702 of FISA.
“Regular Americans who use their phones on a daily basis are not consenting to send all their movements, contacts and web browsing information to the government,” he said in a statement hailing the House bill.