Protecting Digital Privacy With the Fourth Amendment Is Not For Sale Act
Civil Rights Policy Brief #193 | By: Rodney A. Maggay | August 22, 2022
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In early 2020 the Wall Street Journal first broke a story claiming that federal agencies were acquiring cellphone data information to be used for enforcement of immigration policies.
In response to the story, the American Civil Liberties Union (ACLU) filed a Freedom of Information Act (FOIA) request with the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE) and the Customs and Border Protection (CBP) agencies for the release of documents related to how the government acquires cell phone location information. The ACLU subsequently brought a lawsuit to compel production of the information and eventually added the U.S. Secret Service, the U.S. Coast Guard and other DHS departments to the list of agencies from which the ACLU was requesting information.
The ACLU did receive a significant amount of information from the agencies, which resulted in a surprising discovery. Based on its review of information received the ACLU found that DHS was spending millions of dollars to buy cell phone location tracking information from a number of non – government data broker companies.
A data broker, or information broker, is a company that collects data or information from any public source, and sometimes from private transactions, and then sells the information to a third party. The sale of this information to the government occurs without any legal protections such as a search warrant and does not prohibit the government from using the purchased data as part of a criminal investigation.
In response to the investigation by the Wall Street Journal and the FOIA request by the ACLU, Senators Ron Wyden of Oregon and Rand Paul of Kentucky introduced the Fourth Amendment Is Not For Sale Act. This bill proposes to close the gap in the law that permits data brokers to sell personal information of American citizens to the government without any court oversight. LEARN MORE
The Fourth Amendment Is Not For Sale Act is an important bill because it will close a legal loophole that has emerged with the rise of private digital information.
The bill was sponsored in both houses of Congress by a significant number of members from both sides of the aisle indicating broad bipartisan support. Fourth Amendment protections against search and seizure issues is one that appeals to both parties because of privacy issues and the desire to keep law enforcement from unneccessarily digging into a person’s intimate information without a proper search warrant.
The Fourth Amendment to the U.S. Constitution provides that people have a right against “unreasonable searches and seizures” and that a search warrant shall only be issued based on probable cause. In 2018, the Supreme Court decided Carpenter v. U.S., which decided that the U.S. Government must have a search warrant in order to acquire cell phone tracking records from a third party.
However, the government has found a way to avoid the warrant requirements required by the Fourth Amendment. What the Wall Street Journal investigation and the ACLU’s FOIA request has shown is that the government was using a work around in order to bypass getting a search warrant to acquire cell phone tracking information.
Instead of having to apply to a court for the cell phone tracking information – which would have taken time to compile evidence for a probable cause determination by a judge – the government decided to just buy the information from two data broker companies, Venntel and Babel Street.
The actions by the government, while not in violation of any specific law, still goes against the abuses that the Fourth Amendment was designed to protect against.
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That amendment was designed to protect the privacy of all persons from unreasonable searches and seizures and intrusions into their private lives and affairs without a warrant supported by a showing of probable cause.
By buying cell phone tracking information from data brokers the government can seize large troves of information to go through without having to show the requisite probable cause, without having a neutral judge scrutinize the evidence and make a decision whether a warrant should issue and allows the government to look without limitations through so much digital info that might not even be relevant or connected to a specific investigation.
The government might never need to apply for a search warrant ever again if it would be permitted to go down this road of buying cell phone tracking info and other digital info from third parties.
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Luckily, a bipartisan group of Senators and Representatives have recognized this problem and have introduced a bill to fix this legal loophole that government agencies are exploiting. Under the Fourth Amendment Is Not For Sale Act the bill will require a court order to force data brokers to reveal the data they’ve compiled, prohibits the purchase of data of American citizens by the government from third parties and extends privacy laws to companies that own data cables and cell towers.
This is significant because it brings into line with Fourth Amendment law the curious situation that had developed with the purchase of digital data by the government. There is a specific framework that government and intelligence agencies had to follow whenever they sought personal private information of persons in their investigations. It just so happened that data purchases from third parties were not adequately addressed in the law. With the rise of massive digital information that people put online and carry with them on their cell phone and in cloud based services, it became inevitable that the government would need to access information platforms in the course of their investigative duties.
This bill, if passed, will ensure that the government does not get a free pass in acquiring digital data. Now it will only get the information they want through accepted procedures such as applying to a judge for a search warrant. And it ensures that other privacy safeguards will be in place whenever the government deals with cell phone tracking technology and other digital data available from data and information brokers. Due to the broad support in Congress the bill looks likely to pass with a close vote not expected at all. LEARN MORE, LEARN MORE
This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact email@example.com.