Bill Limiting Data Broker Sales To Law Enforcement Moves Forward
from the little-bit-more-Fourth-for-everyone dept
The Supreme Court made it clear in 2018 with its Carpenter decision: gathering historical cell site location info in bulk was impermissible under the Fourth Amendment. If law enforcement wanted to engage in third-party-enabled long term tracking of suspects via this info, it needed to get a warrant first.
That ruling seemed to make everything crystal clear. But it didn’t. Law enforcement sought other ways to obtain this same data without having to run anything by a judge. Central to the Carpenter decision were cell service providers. This was the government approaching these providers to obtain location data dating back to whatever data investigators thought might be useful.
The Carpenter decision rolled back a bit of the Third Party Doctrine. The Supreme Court said in this ruling that people may be aware cell service providers are gathering this data (something essential to ensuring cell service), but that wasn’t the same thing as giving the government permission to access weeks or months of this data without a warrant.
With this one subset of third parties excised from the Third Party Doctrine, government agencies began looking for other sources not specifically referenced by this ruling. And they found them. Any number of data brokers harvest location data from cell phone apps and sell access to this data to the government.
As it stands now, this is still technically legal. But it’s only technically legal because no one has had an opportunity to directly challenge this warrantless acquisition in court. Meanwhile, data brokers continue to give the government what it wants: lots of data at low, low prices, all of it accessible by utilizing nothing more than a cleared check and laptop.
Courts can’t change this new status quo on their own. They need a suppression request worth considering before they can do anything about it. And even if they could do something about it, they might not because the Carpenter decision only deals with cell phone providers, rather than app developers and their data brokering remoras.
In many cases, courts are content to declare their hands are tied and suggest everyone take it up with Congress. That’s not much help to criminal defendants, who not only can’t approach Congress directly, but are likely to lose their voting privileges if convicted.
Fortunately, there’s still a handful of people on Capitol Hill willing to take matters into their own hands. Leading the way is fervent Fourth Amendment defender Ron Wyden, who first introduced a bill in 2021 that would codify a warrant requirement for acquiring Americans’ cell phone data from data brokers. Thanks to Wyden and bill co-sponsors/supporters Rand Paul, Zoe Lofgren, Warren Davidson, and Jerry Nadler, Wyden’s “Fourth Amendment Is Not For Sale Act” has moved to the next level.
The bill passed out of the House Judiciary Committee, heading one step up the ladder towards the President’s desk. We’ll have to see if it goes to the full floor of the House or what the Senate decides to do with the bill, but for now there’s progress being made. As Wyden points out in his press release, the government should have to hand over more than a handful of taxpayers’ cash to obtain data that basically acts as a long-term tracking device.
“The Fourth Amendment is Not For Sale Act will restore Americans’ Fourth Amendment rights and stop the government from using its credit card when it should be getting a warrant,” Wyden said. “Regular Americans who use their phones on a daily basis are not consenting to send all their movements, contacts and web browsing information to the government. I applaud the Judiciary Committee for advancing our bill on a bipartisan basis, and look forward to following suit in the Senate.
And that’s the way it should be. The government shouldn’t be allowed to bypass the Fourth Amendment just because it’s not acquiring this data explicitly from cell phone service providers. The data serves the same purpose and provides the same kind of evidence law enforcement desires. And if it’s the same thing as cell site location info, it should need a warrant to gather it in bulk.
Filed Under: 4th amendment, data brokers, jerry nadler, privacy, rand paul, ron wyden, warrants, warren davidson, zoe lofgren
Comments on “Bill Limiting Data Broker Sales To Law Enforcement Moves Forward”
For people complaining about 'warrant-proof' tech they sure are warrant-averse
Probably the most damning bit and the thing that should always be brought up when the topic arises is that none of this would be an issue if law enforcement would just follow the law.
Want to search through someone’s stuff, digital or otherwise? Get a warrant.
Don’t have enough to justify a warrant? Then you don’t have enough to justify a search.
Engaging in searches without a warrant is at best a sign of corrupt laziness where they can’t be bothered to follow the law or, being less generous, a sign that even they know they don’t have enough for a warrant that a judge would sign off on. In either case it’s a problem entirely of their own making.
Re: "...if law enforcement would just follow the law"
… people that routinely break the law are Outlaws.
Writing more laws to make them obey existing laws is stupidity.
The Outlaws must be publicly condemned and totally purged from power.
The corruption is so deep that the necessary purge must include every government power center now engaged in suppose “law enforcement”.
Re: Re:
Corruption is human nature, it will never go away and your purge will only strengthen it. Knee jerk reactions will not save us.
Re: Re: Re:
… No, every human is not born with a corrupt nature — a civilized society is based on firmly controlling that minority malady.
Concentrated societal power does strongly incentivize the corruption prone segment of humans.
But what is your recommendation for handling this deeply embedded corruption in our very poweful government law enforcement bureaucracies ?
Re: Re: Re:2
“But what is your recommendation”
The question ..
I do not claim to possess answers. Humans are imperfect, fallible and quite gullible.
“No, every human is not born with a corrupt nature ”
Did not make such a claim
“a civilized society is based on firmly controlling that minority malady.
Civilized is in the eye of the beholder. The desire to control things is telling, and the seven deadly sins are not called deadly because they are minor maladies.
Why is it required that I have the answer prior to complaining about .. whatever? Screw that.
Re: Re: Re:3
“I do not claim to possess answers.”
… well, you seemed quite certain that the purge approach was wrong + counter-productive, and that corruption problem in society was intractable.
So you do offer some specific answers addressing the topic at hand.
Re: Re: Re:4
Observations are not answers .. what is wrong with you?
I can’t get excited about this because they’ll have a workaround. They’re working on passing new ones right now by sneaking the Cooper Davis, Kids Online Safety, EARN IT, STOP CSAM and RESTRICT acts through amendments for the NDAA.
What I would really prefer is a law saying that apps can’t sell your location data to anyone. There are some things which are just incompatible with basic privacy.
Re: Bill Limiting Data Broker Sales - Nope
“Bill Limiting Data Broker Sales To Law Enforcement” is misdirected.
The law should prohibit – ANYONE – or any arm of government at any level, or any company from BUYING or OTHERWISE OBTAINING such information.
The penalties must also be extremely harsh or it will just become a “cost of doing business”.
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ill Limiting Data Broker Sales To Law Enforcement Moves Forward
A bill that would limit data broker sales to law enforcement agencies has moved forward in the US House of Representatives. The legislation would prevent government agencies from buying private data, including individuals’ locations, from data brokers without a warrant. The bill has bipartisan support and is seen as a way to rein in law enforcement access to data brokers.
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