• Nancy Miller

Data-Sharing and the Fourth Amendment

The majority of us that spend any time on the internet are well aware that our shopping habits are being tracked; it seems we only have to think that we might be interested in making a purchase and the ads begin to appear everywhere we turn. It is somewhat irritating and concerning but most of us just consider it how we pay for a (mostly) free internet.

Unfortunately, the data-mining, location gathering, and image collection data being collected by data brokers has given law enforcement a loophole for gathering personal information without a warrant. Currently, due to a ruling in 2018 by the Supreme Court, law enforcement needs a warrant to obtain information from your email or mobile phone provider. However, the data collected from your ad searches, location sharing, and social media activities is for sale on the open market and law enforcement agencies are purchasing it.

A bill to close the loophole that allows the government and enforcement agencies free access to data obtained by data brokers has been introduced by a bipartisan group of lawmakers. Entitled the “Fourth Amendment is Not for Sale Act” the bill, sponsored by Senator Ron Wyden (D-OR), will:

· Prohibit law enforcement and intelligence agencies from gathering information on persons in the US or US citizens overseas by purchase, service fees, or other value exchange if the data is gathered from someone’s account via a deceptive activity such as hacking or violation of a contract, privacy policy, or terms of service.

· Require law enforcement to obtain a court order to get personal data from data brokers.

There is broad, bi-partisan support for the bill indicating wide-spread interest by lawmakers in how information is packaged and sold for the digital market. The bill is co-sponsored by Elizbeth Warren (D-MA), Cory Booker (D-NJ), Bernie Sanders (I-VT), Chuck Schumer (D-NY), Edward Markey (D-MA), Tammy Baldwin (D-WI), Sherrod Brown (D-OH), Brian Schatz (D-HI), Jeff Merkley (D-OR), Jon Tester (D-MT), Martin Heinrich (D-NM), Mazie Hirono (D-HI), Patty Murray (D-WA), Marie Cantwell (D-WA), Patrick Leahy (D-VT), Richard Blumenthal (D-CT), Rand Paul (R-KY), Mike Lee (R-UT), and Steve Daines (R-MT) .

The bill has the support of the ACLU and other civil, digital, and race activism groups. "The Fourth Amendment Is Not For Sale Act is, in my view, a critically important bill that will prevent agencies from circumventing core constitutional protections by purchasing access to data they would otherwise need a warrant to obtain," Kate Ruane, senior legislative counsel at the American Civil Liberties Union (ACLU), told Motherboard in a phone call. The bill also has the support of the IAB (Interactive Advertising Bureau). The IAB is the largest digital industry trade group, and they are one of the groups that have been engaged with lawmakers in drafting the bill. Other groups supporting the bill are the National Advertising Initiative, the Electronic Frontier Foundation, and Mozilla.

An equivalent bill was introduced in the House of Representatives by Rep. Jerry Nadler (D-NY) and Zoe Lofgren (D-CA).

Sen. Kristen Gillebrand (D-NY) has also published a bill named the Data Protection Act that would create a federal agency with the express purpose of protecting the privacy of US citizens. The US is one of a

very few countries without a data protection law. Gillibrand said a new data protection agency would “create and meaningfully enforce” data protection and privacy rights federally.

“The data privacy space remains a complete and total Wild West, and that is a huge problem,” the senator said.

I appreciate that our lawmakers are being proactive in protecting our locations, facial images, and other personal data from being accessed by government and law enforcement agencies without producing a court order. Without the clarification by legislation, there would need to be lawsuits filed and, ultimately, a decision by the Supreme Court.

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