A new bill known as the Fourth Amendment is Not for Sale Act would seal up a loophole that intelligence and law enforcement agencies use to obtain troves of sensitive and identifying information to which they wouldn’t otherwise have legal access.
The new legislation, proposed by Senators Ron Wyden (D-OR) and Rand Paul (R-KY), would require government agencies to obtain a court order to access data from brokers. Court orders are already required when the government seeks analogous data from mobile providers and tech platforms.
“There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider,” Wyden said. Wyden describes the loophole as a way that police and other agencies buy data to “end-run the Fourth Amendment.”
Paul criticized the government for using the current data broker loophole to circumvent Americans’ constitutional rights. “The Fourth Amendment’s protection against unreasonable search and seizure ensures that the liberty of every American cannot be violated on the whims, or financial transactions, of every government officer,” Paul said.
Critically, the bill would also ban law enforcement agencies from buying data on Americans when it was obtained through hacking, violations of terms of service or “from a user’s account or device.”
That bit highlights the questionable practices of Clearview AI, a deeply controversial tech company that sells access to a facial recognition search engine. Clearview’s platform collects pictures of faces scraped from across the web, including social media sites, and sells access to that data to police departments around the country and federal agencies like ICE.
In scraping their sites for data to sell, Clearview has run afoul of just about every major social media platform’s terms of service. Facebook, YouTube, Twitter, LinkedIn and Google have all denounced Clearview for using data culled from their services and some have even sent cease-and-desists ordering the data broker to stop.
The bill would also expand privacy laws to apply to infrastructure companies that own cell towers and data cables, seal up workarounds that allow intelligence agencies to obtain metadata from Americans’ international communications without review by a FISA court and ensure that agencies seek probable cause orders to obtain location and web browsing data.
The bill, embedded below, isn’t just some nascent proposal. It’s already attracted bipartisan support from a number of key co-sponsors, including Senate Majority Leader Chuck Schumer and Bernie Sanders on the Democratic side and Republicans Mike Lee and Steve Daines. A House version of the legislation was also introduced Wednesday.