United States lawmakers are moving with uncommon speed to close a loophole in federal law that police and intelligence agencies use to collect sensitive information on US citizens—up to and including their physical whereabouts—all without the need for a warrant.
The Federal Bureau of Investigation (FBI) and the Defense Intelligence Agency are among several government entities known to have solicited private data brokers to access information for which a court order is generally required. A growing number of lawmakers have come to view the practice as an end run around the US Constitution’s Fourth Amendment guarantees against unreasonable government searches and seizures.
“This unconstitutional mass government surveillance must end,” Warren Davidson, Republican congressman from Ohio, says.
Members of the House Judiciary Committee, led by Ohio’s Jim Jordan, a Republican, will hold a markup hearing tomorrow to consider a Davidson bill aimed at restricting purchases of Americans’ data without a subpoena, court order, or warrant. If passed into law, the legislation's restrictions would apply to federal agencies as well as state and local police departments. Known as the Fourth Amendment Is Not For Sale Act, the bill is cosponsored by four Republicans and four Democrats, including the committee’s ranking member, Jerry Nadler, a Democrat, who first introduced it alongside California Democrat Zoe Lofgren in 2021.
Notably, the bill's protections extend to data obtained from a person's account or device even if hacked by a third party, or when disclosure is referenced by a company's terms of service. The bill's sponsors note this would effectively prohibit the government from doing business with companies such as Clearview AI, which has admitted to scraping billions of photos from social media to fuel a facial recognition tool that's been widely tested by local police departments.
“The principle here is simple,” Nadler said when the legislation was first introduced two years ago. “The government should not be allowed to purchase its way around the rules Congress has enacted to protect the privacy of American citizens.”
In addition to Davidson, Nadler, and Lofgren, the bill is cosponsored by Republicans Andy Biggs, Ken Buck, and Thomas Massie, joining two other Democrats, Pramila Jayapal and Sara Jacobs.
An aide to Jim Jordan, the Judiciary Committee's Republican chairman, signaled that he would likewise support the bill, highlighting the degree to which domestic surveillance fears have risen to supersede fractious politics. The bill had been previously introduced by a bipartisan group of senators in 2021 and had acquired more than 20 cosponsors, including Chuck Schumer, the Senate majority leader. However, the legislation ultimately failed to make much headway in Congress.
A report declassified last month by the nation’s top intelligence official, Avril Haines, stated that a “large amount” of “sensitive and intimate information” has been purchased by the intelligence community, including information that the US Supreme Court has previously ruled is protected by the Fourth Amendment. Senior congressional sources say many lawmakers were taken aback by the apparent breadth of the collection and of the warnings in the report about its potential to “facilitate blackmail, stalking, harassment, and public shaming.”
Other lawmakers are alarmed by the FBI’s disclosure of having purchased location information derived from people’s cell phones. During a hearing in March, the FBI director, Christopher Wray, told senators that the bureau had “previously—as in the past—purchased some such information for a specific national security pilot project.”
Americans have a reasonable expectation of privacy, the US Supreme Court says, when it comes to certain digital information, including that which could reveal “the whole of their physical movements.” Such data—which the court describes as “detailed, encyclopedic, and effortlessly compiled”—need not be GPS-precise merely to justify a warrant. Nevertheless, the government has widely adopted the view that the Fourth Amendment does not apply when that same data is available to it commercially.
When provided, the government's reasoning typically hinges on analysis of the landmark 2018 Carpenter v. United States decision, in which the Supreme Court ruled that the government’s warrantless acquisition of cellular records, which can be used to track a person’s movements, had violated the rights of a 32-year-old man who'd been convicted of carrying out a string of robberies.
In its 5–4 opinion, the court refers to police demanding or “compelling” access to data, something that literal interpreters of the law say places commercial arrangements with data brokers squarely outside the scope of the court opinion. What's more, government lawyers have pointed to acknowledgment from the court that the debate over Carpenter did not consider “collection techniques involving foreign affairs or national security.”
The Supreme Court has erstwhile framed the Fourth Amendment as a means to “plac[ing] obstacles in the way of a too permeating police surveillance,” something that the Constitution’s authors deemed a “greater danger to a free people than the escape of some criminals from punishment.” Oft-cited by the court is a passage by a 19th-century American jurist: “Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the right of personal security, and that involves not merely protection of his person from assault, but exemption of his private affairs, books, and papers, from the inspection and scrutiny of others. Without the enjoyment of this right, all others would lose half their value.”
What rules or guidelines do exist within the intelligence community for purchasing commercial data often justify the activity by deeming the information “publicly available,” pointing to the fact that it may be open for purchase by not only private companies but foreign governments as well. While true and worrying, that is also irrelevant, says Bob Goodlatte, the former chairman of the House Judiciary Committee who now works as a senior policy adviser for the Project for Privacy & Surveillance Accountability, a pro-privacy group.
“None of those other entities can arrest you, can charge you with a crime, try you, sentence you, imprison you, restrain you, enjoin you, fine you, tax you,” Goodlatte says. “All of those are powers of government, and any American should be concerned about the ease with which the federal government can gather information about people.”
Sean Vitka, a senior attorney at the nonprofit Demand Progress, whose slate of issues encompasses privacy and national security reforms, says domestic surveillance was proving to be one of the most bipartisan issues today in Congress, pointing not only to tomorrow’s markup hearing but a concurrent battle being fought over similar purchases by the US military. The House of Representatives last week voted to support an amendment to a defense spending bill requiring a warrant for all data typically protected by the Fourth Amendment, regardless of whether it's for sale. (The amendment was narrowed earlier in the week to exclude non-military agencies, including state and local police departments, which do not fall under the committee of jurisdiction's purview.)
The defense measure, and even the Fourth Amendment Is Not For Sale Act, is a mere prelude to a much bigger fight coming this fall over what's considered the “crown jewel” of the US intelligence community: Section 702 of the Foreign Intelligence Surveillance Act.
“We are now seeing momentous alignment of powerful political actors in favor of enacting major privacy protections for people in the United States,” says Vitka, “on the eve of the biggest fight over warrantless surveillance in generations.”
