A bipartisan group of lawmakers is once again trying to keep the government from performing an end run around the Fourth Amendment by buying people’s personal data. This week, President Joe Biden indicated that he opposed the bill.
H.R. 4639, known as the Fourth Amendment Is Not For Sale Act, “expands prohibited disclosures of stored electronic communications” to include purchases of data by law enforcement and intelligence agencies.
First introduced in 2021 by Sens. Ron Wyden (DOre.), Rand Paul (RKy.), Patrick Leahy (DVt.), and Mike Lee (RUtah), the bill has been reintroduced in subsequent sessions. The current version was introduced in the House by Rep. Warren Davidson (ROhio) and in the Senate by Wyden and Paul.
On Wednesday, Rep. Jerrold Nadler (DN.Y.), ranking member of the House Judiciary Committee and one of the House bill’s cosponsors, affirmed his support on the House floor. “That anyone should have Americans’ private information is highly troubling to me,” Nadler said. “But that our federal government can obtain it without a warrant should be troubling to all of us.”
On Tuesday, the White House announced that the Biden administration “strongly opposes” the bill. According to a Statement of Administration Policy, the bill “generally would prohibit the Intelligence Community and law enforcement from obtaining certain commercially available informationsubject only to narrow, unworkable exceptions.”
The Stored Communications Act forbids technology companies from disclosing certain subscriber information, including to the government. But certain types of dataincluding search histories, credit reports, employment records, and cellphone geolocation datais “commercially available” and can be sold by third parties called data brokers. Often this data is purchased by private companies in order to better tailor their ad spending.
Governments typically need a warrant to access any of that type of informationas recently as 2018, the Supreme Court affirmed in Carpenter v. United States that the government cannot access a person’s cellphone location data without a warrant. “Although such records are generated for commercial purposes,” wrote Chief Justice John Roberts, that alone did not “negate” the plaintiff’s expectation of privacy. “We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information.”
Put simply: Come back with a warrant.
But instead of honoring that decision, law enforcement and intelligence agencies just started buying the information from data brokers instead: The National Security Agency (NSA) buys people’s internet metadata, and agencies within the Department of Homeland Securityincluding Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP)purchase cellphone location data.
Even agencies without an explicit law enforcement mandate have gotten in on the fun: In one example, the Centers for Disease Control and Prevention (CDC) paid $420,000 for cellphone data in order to monitor compliance with COVID-19 lockdown measures.
The Fourth Amendment Is Not For Sale Act would ban these transactions. Regarding customer and subscriber records obtained without a warrant, the bill “prohibits law enforcement agencies and intelligence agencies from obtaining the records or information from a third party in exchange for anything of value (e.g., purchasing them).” It further prohibits other government agencies from sharing that information and prevents the records from being used in “any trial, hearing, or proceeding.”
Again, this should not be controversial: The Fourth Amendment requires law enforcement to get a warrant based upon “probable cause, supported by Oath or affirmation,” before searching one’s “persons, houses, papers, and effects.”
Biden’s opposition to the bill is disappointing. A January 2022 report by the office of Director of National Intelligence Avril Haines found that “today, in a way that far fewer Americans seem to understand, and even fewer of them can avoid,” the type of data at issue “includes information on nearly everyone that is of a type and level of sensitivity that historically could have been obtained, if at all, only through targeted (and predicated) collection, and that could be used to cause harm to an individual’s reputation, emotional well-being, or physical safety.”
The intelligence community “therefore needs to develop more refined approaches to” commercially available information, the report found. On the other hand, perhaps it should stop collecting that data altogether.
