The House on passed a bill on April 17 that would require the federal government to obtain a warrant to purchase Americans’ private data from third parties.
HR 4639, “The Fourth Amendment is Not for Sale Act” (FANSA), would amend the U.S. code to clarify that the Fourth Amendment applies to information obtained through commercial means in addition to traditional searches.
In other words, it would ban the U.S. government from purchasing Americans’ private data without a warrant.
The bill passed in a bipartisan 219 to 199 vote. 123 Republicans and 96 Democrats voted for the bill; 109 Democrats and 90 Republicans voted against it.
The bill is critical piece of ongoing negotiations to extend authorization for the controversial Section 702 of the Foreign Intelligence Surveillance Act, which effectively allows the government to spy on American citizens if those citizens have communicated with someone outside the country.
“This bill is exactly the type of legislation needed to rein in the federal government and protect the privacy rights of Americans,” Ms. Hageman said.
“Instead of going to a judge to demonstrate probable cause and obtain a warrant, government agencies like the Federal Bureau of Investigation, the Internal Revenue Service, the Drug Enforcement Agency, and the Department of Homeland Security can simply turn to data brokers and purchase mass amounts of Americans’ data.”
Ms. Hageman noted that the information obtained by the federal government from data brokers includes personal information obtained by tracking Americans at their places of worship and at protests.
Rep. Jerrold Nadler (D-N.Y.) likewise said the bill had broad bipartisan support, noting that it was approved to move to the floor in a rare unanimous committee vote.
“We have the Fourth Amendment for a reason. If law enforcement wants to gather information about you, they should first obtain a warrant. They should have to go to a judge and explain why there’s probable cause and why they need to know this information.”
“That anyone should have Americans’ private information is highly troubling to me,” Mr. Nadler said. “That our federal government can obtain it without a warrant should be troubling to all of us.”
The data the government is purchasing includes data that was illegally obtained by the data brokers it is purchasing from.
“The U.S. government should not be funding and legitimizing a shady industry whose flagrant violations of Americans’ privacy are not just unethical, but illegal,” Mr. Wyden wrote at the time.
The letters revealed that the DoD and its intelligence-related wings have effectively been circumventing Americans’ Fourth Amendment rights by using commercial means to obtain private information without the warrants that would be required to obtain such data from service providers.
Records purchased from data brokers by the federal government include IP addresses, metadata, and geolocation data, among other things, which can reveal what websites Americans visit, what apps they use, and even their personal medical histories.
Gen. Paul Nakasone, who serves as director for the NSA, argued at that time that the Fourth Amendment does not protect Americans’ information if it is commercially available, even if it was obtained by the seller illegally.
That statement is built on the DoD’s interpretation of Carpenter v. United States, a 2018 Supreme Court case that found the government could not obtain Americans’ cellphone location data and other information from service providers without a warrant.
As such, the legality of the practice is now an issue of some contention.
