Pat Leahy, Rand Paul et al introduce 'Fourth Amendment Is Not For Sale Act'

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Pat Leahy, Rand Paul et al introduce 'Fourth Amendment Is Not For Sale Act'

Wed, 04/21/2021 - 1:56pm -- tim

New Legislation Prevents End-Run of Courts by Government Agencies Buying Americans’ Data; Reflects Supreme Court Rulings that Digital is Different; Reps. Nadler and Lofgren to Introduce House Companion

Vermont Business Magazine US Senators Patrick Leahy, D-Vermont, Ron Wyden, D-Ore, and Rand Paul, R-Ky, and 17 other senators, today introduced a bill to put a stop to shady data brokers buying and selling Americans’ Constitutional rights.

The Fourth Amendment is Not for Sale Act closes the legal loophole that allows data brokers to sell Americans’ personal information to law enforcement and intelligence agencies without any court oversight – in contrast to the strict rules for phone companies, social media sites and other businesses that have direct relationships with consumers.

“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,” Wyden said. “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.”

“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. “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. Enacting the Fourth Amendment is Not For Sale Act will not only stop this gross abuse of privacy, but also stands for the fundamental principle that government exists to protect, not trade away, individual rights.” 

“I think that Americans would be surprised to know that federal law does not already properly safeguard consumers’ private information from government agencies. The Fourth Amendment Is Not For Sale Act closes existing legal loopholes and would require the government to secure a court order before buying Americans’ data, such as location data from our smart phones, from data brokers. In today’s world, the amount of information we share with companies continues to exponentially increase. The federal government simply should not have a constitutionally suspect backdoor to harvest this information without judicial checks in place. This bipartisan bill would close that backdoor and provide Americans the privacy protections our Founders envisioned when they penned the Constitution,” Leahy said.

“The federal government should not be allowed to skirt the Fourth Amendment’s existing warrant requirements, and surveillance laws by purchasing Americans’ data from third-party brokers. This legislation will protect the civil liberties of Americans by closing loopholes in existing law,” Sen. Mike Lee, R-Utah, said.

House Judiciary Committee Chairman Jerry Nadler, D-N.Y., and House Administration Committee Chair Zoe Lofgren, D-Calif., introduced the House version today.

“The principle here is simple: 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.  I am proud to introduce this bill, and I look forward to examining the legislation in the House Judiciary in the coming months,” Chairman Nadler said.

“It is both sensible and necessary to close the data broker loophole that allows the government to buy some of our most sensitive personal data – like location records,” Lofgren, co-chair of the Congressional Fourth Amendment Caucus, said. “In addition to closing this loophole, our bipartisan, bicameral Fourth Amendment is Not For Sale Act would crucially prevent intelligence agencies from using private data purchases and other means to circumvent the legal regime that Congress has put in place to prevent mass surveillance of Americans. Our digital data opens a window into the most sensitive areas of our private life, and this bill would be a major step forward in curbing surveillance abuse and protecting Americans’ civil liberties.”

The bill was cosponsored by Majority Leader Chuck Schumer, D-N.Y. Sen. Mike Lee, R-Utah, Sen. Patrick Leahy, D-Va., Sen. Steve Daines, R-Mont., Sen. Edward Markey, D-Mass., Sen. Tammy Baldwin, D-Wisc., Sen. Elizabeth Warren, D-Mass., Sen. Sherrod Brown, D-Ohio, Sen. Brian Schatz, D-Hawaii, Sen. Cory Booker, D-N.J., Sen. Bernie Sanders, D-Vt., Sen. Jeff Merkley, D-Ore., Sen. Jon Tester, D-Mont., Sen. Martin Heinrich, D-N.M., Sen. Mazie Hirono, D-Hawaii, Sen. Patty Murray, D-Wash., Sen. Maria Cantwell, D-Wash., and Sen. Richard Blumenthal, D-Conn.

“Consumers should have the right to protect their personal data and information, and Congress must work to set the rules of the road for responsible uses of such technology,” Booker said. “The Fourth Amendment Is Not For Sale Act is essential legislation that will put the American people first by ensuring that their data and private information are not sold to the federal government.”

“It’s simple, Montanans’ private information is not for sale. We must close the loopholes that allow the federal government to circumvent the 4th Amendment and buy Americans’ personal data,” Daines said.

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. As such, this bill prevents the government buying data from Clearview.AI.

·       Extends existing privacy laws to infrastructure firms that own data cables & cell towers.

·       Closes loopholes that would permit the intelligence community to buy or otherwise acquire metadata about Americans’ international calls, texts and emails to family and friends abroad, without any FISA Court review.

·       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. This language is similar to language that was in the 2020 Wyden-Daines amendment to legislation to reform Section 215.

·       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.

Wyden’s oversight of the data broker industry has uncovered rampant abuses of Americans’ privacy and security, including the sale of Americans’ location information to prisons, local law enforcement and bounty hunters, the Defense Intelligence Agency’s warrantless use of American’s location information, and the Internal Revenue Service’s use of warrantless location information to look for tax cheats. Investigations by Motherboard and the Wall Street Journal have revealed that U.S. Customs and Border Protection and the Department of Homeland Security, among other agencies, have used commercial databases without warrants in their investigations.

Read the full bill text here. A summary is available here.

A broad coalition of civil liberties, civil rights, technology and free speech groups endorsed the legislation, including: Access Now, Accountable Tech, American Civil Liberties Union, Americans for Prosperity, Brennan Center for Justice, Center for Democracy and Technology, Color of Change, Demand Progress, Due Process Institute, Electronic Frontier Foundation, Fight for the Future, Freedom of the Press Foundation, FreedomWorks, Free Press Action, Interactive Advertising Bureau, Just Futures Law, MediaJustice, Mijente, Mozilla, NAACP, National Association of Criminal Defense Lawyers, Network Advertising Initiative, Open Technology Institute at New America, Open The Government, PEN America, Project on Government Oversight, Public Citizen, Public Knowledge, Project for Privacy, Surveillance Accountability and Restore the Fourth.

Sean Vitka, Senior Policy Counsel, Demand Progress: “The Fourth Amendment Is Not For Sale Act is critical foundation for the right to privacy in the digital age — an age where data brokers like Clearview.AI are scrambling to vacuum up every record of every person connected to the internet. Given that the government is apparently paying these suspicious companies millions upon millions of dollars to obtain our telephone records, our location records, and perhaps even our internet browsing records, this is urgent legislation that is necessary to stave off an unthinkable blanket of surveillance across this country.”

Jade Magnus Ogunnaike, Senior Campaign Director, Color Of Change: “The Fourth Amendment Is Not for Sale Act is a critical step forward in ensuring the protection of Black residents and marginalized communities, who continue to be disproportionately exposed to the dangers of unchecked policing and government surveillance. For far too long, mobile app developers and data brokers have operated in unison with law enforcement and intelligence agencies to prey on Black people and increase their profit margins. We thank Senator Wyden for his leadership on this legislation to combat the unfettered abuse of surveillance technology and we will continue to advocate for oversight and regulation of tech platforms that put Black people at risk.”

Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor to the Project for Privacy and Surveillance Accountability: “Under current law, the government cannot compel tech and phone companies to disclose our information without a court order. There's no reason data brokers should get a special loophole. Everyone who stands up for liberty and Constitutional rights should support this commonsense, bipartisan legislation to close the data broker loophole.”

Sandra Fulton, Free Press Action Government Relations Director: “Federal agents are exploiting a huge loophole in privacy laws. They’re buying data from unregulated and exploitative data brokers to track immigrants and other vulnerable communities and create a massive public-private surveillance mechanism. We applaud Senator Wyden and Chairman Nadler for their leadership in introducing the Fourth Amendment Is Not for Sale Act to shut down these dangerous practices.”

Source: Washington, D.C. – 4.21.2021