New bill would prevent federal agencies from buying data

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A new bill would crack down on federal agencies using “legal loopholes” to collect massive amounts of information about Americans without a court order.

The bill, which was first discussed in August but wasn’t officially proposed until Wednesday, is called The Fourth Amendment Is Not For Sale Act and was introduced by Sen. Ron Wyden (D-Ore. ), along with 19 other senators as part of a bipartisan effort. It targets loopholes in the law that allow the government to buy Americans’ private information from data brokers without obtaining the warrant typically required by the Fourth Amendment.

“The Fourth Amendment Act is not for sale fills in key gaps in federal privacy law and ensures that the Electronic Communications Privacy Act, which regulates law enforcement access order to information of Americans, and the Foreign Intelligence Surveillance Act, which regulates intelligence agencies, are the exclusive means by which the government can surveil Americans,” according to Wyden.

Wyden said there are laws that prevent government agencies from accessing data from companies like AT&T and Verizon without a warrant. For example, the Stored Communications Act prohibits companies that provide telephone, messaging, data storage, or data processing services from voluntarily disclosing customer information to the government. However, government agencies and law enforcement can circumvent these regulatory efforts by turning to third-party companies, particularly in the marketing industry, who access and sell data without a direct relationship to customers.

“Although it is illegal for app developers to sell data directly to the government, a legal loophole allows app developers to sell data to a data broker, who can then sell that data to the government,” according to Wyden. “According to media reports, other data brokers have been tracking people at places of worship and at protests.”

The relationship between federal agencies and data brokers has come under increasing scrutiny in recent years. For example, in June, reports surfaced that the Internal Revenue Service (IRS) purchased a commercial database from a Virginia-based government contractor called Venntel Inc., in an attempt to track potential suspects. The database contained location data collected from millions of US smartphones.

Recently, the US government’s involvement with Clearview AI, which provides facial recognition software based on a database of billions of photos compiled from various social media websites, has also raised privacy concerns. This week, 70 advocacy groups, including the American Civil Liberties Union (ACLU), called on the Department of Homeland Security (DHS) to clarify its relationship with Clearview AI. Media have previously reported that DHS, Immigration and Customs Enforcement (ICE), and Customs and Border Patrol (CBP) are paying for access to Clearview AI software.

The new bill would crack down on this type of behavior by requiring the government to obtain a court order to compel data brokers to release data. It would be the same type of court order needed to force tech or phone companies to release data, according to Wyden. In addition, the bill would prohibit law enforcement and intelligence agencies from purchasing data on individuals in the United States overseas, if the data was obtained from the account or the user’s device, or via “deception, hacking, breach of contract, privacy policy or terms of service.”

The bill also closes loopholes that could allow the intelligence community to buy metadata about Americans’ international calls, text messages and emails from family and friends abroad, and obtain records of their browsing on foreign websites. And it would deprive the Attorney General of the power to grant civil immunity to vendors and other third-party companies for surveillance assistance that is not required or authorized by law. Providers may instead retain immunity for court-ordered surveillance assistance.

The Fourth Amendment law is not for sale joins a host of other regulatory efforts that target citizens’ private data. Another recently proposed bill, for example, aims to curb the export of US citizens’ personal data to “potentially hostile foreign nations.”

This more recently proposed bill is “fit for the data broker loophole,” said Sean Vitka, senior policy adviser for Demand Progress.

“The government is buying treasure troves of information from data brokers, which is a savage abuse of power and a circumvention of the Constitution,” Vitka said. “The problem here is that the buying of data has become a growing concern. You have data brokers, these obscure sets of companies, who have secretly or opaquely compiled not just information about people, but profiles full of people.

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