Let’s Close the Loophole in the Government’s Right to Snoop

By Marc J. Lane

The Fourth Amendment shouldn’t be for sale. But it is.

The Constitution’s Fourth Amendment guarantees the right of people to be secure in their persons, houses, papers and effects against unreasonable searched and seizures by the government. The protection is rooted in ancient English history. In 1604, in the Semayne's Case, the judge, Sir Edward Coke, first identified a common-law right in ruling that, "The house of everyone is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." So today, thanks to James Madison and the other Framers who embraced the Semayne;s Case’s logic, the government can’t cut a deal with phone companies like AT&T and Verizon and the big tech companies like Google and Facebook to buy all the personal information that’s collected on us.

But nothing stops data brokers who don’t directly deal with consumers from selling our private information to the government without a court order. When law enforcement agencies game the system by collecting massive amounts of information on Americans without court orders, they put our privacy dangerously at risk.

Press accounts recently revealed that data broker Venntel is selling location data collected from Americans’ smartphones to government agencies. Another broker, Clearview.AI, has compiled a data base of billions of photos, downloaded in bulk from Facebook, LinkedIn, Twitter and YouTube, all in violation of their respective terms of service. Clearview.AI uses these photos to power a facial recognition service it sells to government agencies which it they can search without a court order. Other data brokers are reported to have tracked people at their places of worship and at protests.

The Fourth Amendment Is Not For Sale Act, pending in Congress, would deny the federal government this constitutionally suspect back door to harvest consumers’ private information without judicial oversight.

This bill would:

• require the government to get a court order to force data brokers to disclose data — the same kind of court order needed to compel data from tech and phone companies.
• stop law enforcement and intelligence agencies from buying data on people in the U.S. and about Americans abroad, if the data was obtained from a user’s account or device, or via deception, hacking, violations of a contract, privacy policy, or terms of service.
• extend existing privacy laws to infrastructure firms that own data cables and cell towers.
• close loopholes that permit the intelligence community to buy or otherwise acquire metadata about Americans’ international calls, texts and emails to family and friends abroad, and obtain records about their web browsing of foreign websites — information that would normally require a court order to compel.
• 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.

Let’s get behind the Fourth Amendment Is Not For Sale Act and honor the spirit of the Fourth Amendment. Sir Edward Coke and President Madison would expect nothing less.