Posted In: Cybersecurity & Data Privacy & Cybersecurity & Data Privacy
on May 26, 2021
As many may know, the Fourth Amendment of the U.S. Constitution protects Americans from unreasonable search and seizure of their personal information. In theory, this Amendment requires law enforcement agencies to obtain a warrant to acquire a consumer’s personal data. However, it may be less common knowledge that the federal government has been taking advantage of a legal loophole that allows law enforcement and intelligence agencies to purchase consumers’ personal information from data brokers without first obtaining a warrant. In response to this activity, congressional lawmakers have introduced bipartisan legislation known as the “Fourth Amendment is Not for Sale Act” (the “Bill”). The Bill was introduced in the Senate to stop the federal government from buying Americans’ location data and other personal information from companies such as Venntel Inc., Clearview AI, and other data brokers that do not have direct relationships with consumers.
The Issue – Warrantless Access to Consumer Data
Currently, law enforcement and intelligence agencies are required to obtain a warrant if they want to compel consumers’ personal information from phone companies, social media platforms, and other consumer-facing businesses. However, these agencies have been circumventing the warrant requirement by purchasing massive amounts of personal information compiled by third-party data brokers. Thus, for example, a consumer’s data that is scavenged by data brokers is being treated differently than the same data held by the consumer’s phone company or email provider. In a press release accompanying the Bill, lawmakers communicated that “while there are strict rules for consumer-facing companies – phone companies like AT&T and Verizon and tech companies like Google and Facebook – loopholes in the law currently permit data brokers and other firms without a direct relationship to consumers to sell Americans’ private information to the government without a court order.”1 According to the Bill’s Senate sponsors, the Bill’s purpose is to close this legal loophole and ensure that the government cannot use taxpayer funds to evade the spirit of the Fourth Amendment.2
Supporters of the Bill argue that the government should not be allowed to use money as leverage around laws that Congress has enacted to protect the privacy of American citizens. Examples of government agencies exploiting this loophole include the IRS’ Criminal Investigation Division purchasing access to a Venntel database of location data culled from mobile apps, and U.S. Immigration as well as, Customs Enforcement buying access from Clearview AI to facial recognition technology powered by a massive database of photos downloaded from popular social media sites such as Facebook and LinkedIn.
The Solution – The Fourth Amendment is Not for Sale Act
If the Bill were to become law, government agencies would be required to obtain a warrant to compel data brokers to disclose consumer data, thus subjecting data brokers to the same data disclosure rules as social media giants and telecommunication companies. Additionally, the Bill’s enactment would align with the U.S. Supreme Court’s recent proclamation that digital data, including cellphone records and location data, deserve heightened privacy protections under the Fourth Amendment.3 In addition to preventing government agencies from using money to circumvent the legal protections of the Fourth Amendment, the Bill’s enactment would also:
- Extend existing privacy laws to infrastructure firms that own data cables and cell towers.
- Take 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. Such providers would only retain immunity where a court orders them to assist with surveillance.
The nonconsensual sale of consumer data for law enforcement purposes is a highly questionable practice that poses a significant risk to the privacy rights of consumers. Therefore, it is of no surprise that the Bill has generated major support from a broad range of civil liberties, civil rights, technology, and free speech groups, including the American Civil Liberties Union (ACLU). ACLU went as far as to say that the Bill’s passage into law is critical to protecting our privacy rights in the digital age.5 The Fourth Amendment was designed to protect American citizens from warrantless searches of our private information. However, the federal government continues to purchase location data and other sensitive information from private companies without our knowledge or consent. We should closely watch the congressional journey of the Fourth Amendment is Not for Sale Act, as lawmakers attempt to replenish the spirit of the Fourth Amendment through the expansion of privacy rights for American consumers.
How Brouse Can Help
As consumer privacy rights continue to expand in the United States, Brouse McDowell’s Cybersecurity and Data Privacy team can provide the guidance and tools you need to develop an understanding of key changes to privacy regulations and how they might impact your business or practice. In understanding the importance of consumer information, we also provide proactive solutions for companies to defend against cyber-attacks. Our cybersecurity team offers a variety of data privacy and cybersecurity services, including pre-breach and cybersecurity planning, cybersecurity and data privacy transactional services, data regulatory compliance services, breach response and disclosure obligation services, cyber liability insurance review, and any related litigation issues regarding cybersecurity and data breaches (investigation, defense, insurance recovery and response). Please contact us for more information and to learn how we can partner with you.
3 https://www.nytimes.com/2018/06/22/us/politics/supreme-court-warrants-cell-phone-privacy.html; https://law.stanford.edu/2018/06/22/supreme-court-defends-privacy-in-cell-phone-location-data-collection/.
4 For instance, the law would stop government agencies from buying data from Clearview AI, the facial recognition provider that has been accused of violating the terms of service of several company sites, including Facebook and Twitter, by scrapping photos from these sites to build its massive database.
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