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Privacy Champions Urge Passage of ‘Fourth Amendment Is Not For Sale’ Act

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Yves here. Established readers have been subjected to my occasional rants in comments about how pretty much everyone accepts violations of privacy because convenience, and yours truly goes to some Luddite-level measures to keep some things I care about protected. And no, I don’t believe any of these bloody device-makers have GPS location functions that you can really truly turn it off. I guarantee there are backdoors and the NSA knows all about them. Either put it in a Faraday bag or leave it at home.1

Dinosaurs like me can still dream that we’ll have some rollback. The bill described in this post is one possible measure. An even more hopeful sign was the positive reception that Biden FTC appointee Lina Khan received in her confirmation hearings today. As Matt Stoller explained in Substack, Congresscritters on both side of the aisle are seeing Big Tech as a Big Problem. From Stoller:

Today was Lina Khan’s nominating hearing for her slot as a commissioner at the Federal Trade Commission, which is one of America’s antitrust enforcement agencies. Khan is known as a rock star of antitrust, and for good reason. She helped lead the 16-month investigation of big tech firms by the House Antitrust Subcommittee, and before that she wrote one of the most important law review articles in recent history, Amazon’s Antitrust Paradox…

Other than Blackburn and Lee, both Republicans and Democrats seemed to appreciate Khan’s approach. Republican Senator Roger Wicker, for instance, asked for her views on Clarence Thomas’ opinions on big tech and common carriage. They went back and forth on the problem of big tech, and you wouldn’t know which was a Democrat and which was a Republican. Here’s conservative organizer Rachel Bovard.

So the idea of a pro-privacy “protect the Fourth Amendment” bill may not be as quixotic as it sounds.

By Kenny Stancil, staff writer at Common Dreams. Originally published at Common Dreams

Federal agencies have taken advantage of legal loopholes to collect massive amounts of personal information from cell phone and internet users without congressional or judicial authorization for years, but that practice is being challenged by a bipartisan and bicameral group of lawmakers who introduced legislation on Wednesday that would prevent the U.S. government from buying individuals’ information from data brokers without a court order.

“Every time federal agents buy data from unregulated and exploitative data brokers they’re violating the spirit of the Fourth Amendment.”
—Sandra Fulton, Free Press Action

Led by Sen. Ron Wyden (D-Ore.), a group of 20 senators introduced the Fourth Amendment Is Not For Sale Act (pdf) in the upper chamber of Congress. Reps. Jerry Nadler (D-N.Y.) and Zoe Lofgren (D-Calif.) also unveiled an equivalent bill in the House.

By closing major loopholes in federal privacy laws—including the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act—the newly proposed legislation seeks to protect everyone in the U.S. from unlawful searches and seizures, one of the key civil liberties spelled out in the Bill of Rights.

In a press release (pdf), the lawmakers said that “while there are strict rules for consumer-facing companies—phone companies like AT&T and Verizon and tech companies like Google and Facebook—loopholes in the law currently permit data brokers and other firms without a direct relationship to consumers to sell Americans’ private information to the government without a court order.”

Media reports in the past year “revealed that a data broker named Venntel is selling location data collected from Americans’ smartphones to government agencies,” the lawmakers continued. “While it would be unlawful for app developers to sell data directly to the government, a legal loophole permits app developers to sell data to a data broker, which can then sell that data to the government.”

“Another controversial data broker, Clearview.AI, has compiled a massive database of billions of photos, which it downloaded in bulk from Facebook, LinkedIn, Twitter, and YouTube, in violation of their terms of service,” the lawmakers added. “Clearview.AI uses these illicitly obtained photos to power a facial recognition service it sells to government agencies, which they can search without a court order.”

The Fourth Amendment Is Not For Sale Act would require law enforcement agencies to obtain a court order before accessing data about people through third-party brokers that “aggregate and sell information like detailed user location data, surreptitiously gathered from smartphone apps or other sources,” The Verge reported Wednesday.

As Free Press Action explained, the bill would also prevent “police and intelligence agencies from buying data on people if the information was obtained from a user’s account or device, or via deception, hacking, violations of a contract, privacy policy, or terms of service.”

In addition, the bill would close loopholes that enable the national security state to buy metadata about U.S. residents’ international calls, texts, and emails, and to collect records about their web browsing of foreign websites. While this is information that would typically require a warrant to access, the intelligence community has found ways to circumvent the Fourth Amendment, routinely violating individuals’ constitutional rights in the process.

“Intelligence and law enforcement agencies have an unhealthy interest in the personal information of people in the United States—which their historical abuses have repeatedly demonstrated is dangerous to our democracy,” Sean Vitka, senior policy counsel for Demand Progress, said in a statement.

Calling the proposed legislation “foundational to the future of privacy,” Vitka added that “the founders meant it when they protected our rights against warrantless searches. Intelligence and law enforcement agencies must come to understand that the American people are off limits to warrantless mass surveillance, no matter how it is done.”

In what Free Press Action called “one of the most alarming examples” of unconstitutional surveillance, the U.S. military has been purchasing location and other personal data extracted from prayer and dating apps popular with millions of Muslim users.

“This kind of tracking is an abuse of power and a violation of our Fourth Amendment right to privacy… [and] a harsh truth is that regardless of which party is in power, immigrant communities and people of color are disproportionately targeted,” the organization noted.

According to Free Press Action, U.S. Customs and Border Protection and Immigration and Customs Enforcement “regularly purchase location-tracking data from shady ‘data mining’ tech companies. The privacy and civil rights implications of this are staggering—and mean that the communities that were targeted most by the Trump administration remain at risk under the Biden administration.”

Sandra Fulton, government relations director at Free Press Action, said that “every time federal agents buy data from unregulated and exploitative data brokers they’re violating the spirit of the Fourth Amendment.”

“The intelligence community has manipulated legal loopholes to create a sweeping public-private surveillance mechanism that targets immigrants, people of color, and other vulnerable communities,” she said. “The bill is a much needed response to repeated abuses by federal agencies.”

Fulton added that “it’s time we shut down these dangerous practices, and ensure that the Fourth Amendment is not a relic of the past.”

Free Press Action is urging people to tell their senators and representatives to protect the right to privacy by passing the Fourth Amendment is Not For Sale Act.

_____

1 Pulling out the battery, even when that can be done, won’t necessarily work. Prepper-type guides will show you how to clip the connections to a second smaller battery that powers the GPS tracking in many phones.

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22 comments

  2. tegnost

    I never voluntarily gave away my right to privacy, it was taken away with a whaddayagonnadoabout?

    1. The Historian

      Oh, but you have given away your right to privacy if you use a cell phone, if you search google, if you have free email, if you’ve ever visited any social media site, etc. Did you ever read those Terms of Service that come with those sites? Do you have any idea who they share that data with?

      You may not have known you gave away your right to privacy, but by using those products, you certainly did ‘voluntarily’ give up your rights. This bill won’t stop that but hopefully it will keep the government from buying your data.

  3. shinola

    As much as I would like to see passage of some sort of right-to-data privacy law passed (& enforced), I don’t have much hope for it.

    Big Tech has lots of $$$ to fund PAC’s, hire the best lobbyists & regularly donates to both political parties. As has been reported over & over, including articles right here in NC, more often than not big $$ “donors” get whatever they want out of our congress critters – rights of individual citizens be damned.

  4. chuck roast

    Is this a shell game? Our life is in the complete control of corporations on a daily basis and the government is merely their non-compliant enforcement device. I can’t get anything done at any corporate medical provider without first giving them my DOB. Only then do they want my actual human name. I believe that corporations should know nothing about me personally. As it’s explained to me, the recalcitrant curmudgeon, this minimizes the risk that the medical provider will mistake me for some other chuck roast. My explanation is that the medical provider is allowed to invade my privacy to minimize both their requirement for due diligence and their liability…oh, and incidentally for whatever other use that they deem profitable. We are well through the looking glass.

    1. tegnost

      As it’s explained to me, the recalcitrant curmudgeon, this minimizes the risk that the medical provider will mistake me for some other chuck roast.

      +20 points for effective use of double entendre
      I suffered a 5 point demerit for unexpected coffee/keyboard interface…

  5. Equitable > Equal

    I do worry for today’s young protesters and political activists. While it’s important to document what happens at protests, to stay in contact and to otherwise build momentum around their movement (even if I do not necessarily agree with the goals or beliefs of a movement I definitely believe opposition and protest are vital democratic functions), carrying a combined recording device/biometric ID/wiretap everywhere means they have essentially put themselves under court ordered surveillance. The potential for persecution is massive, as we’ve seen both in Hong Kong and much closer to home

  6. David

    This sort of debate is going on in a number of countries, and always seems to involve the same confusion. The private sector wants “your data” in wholesale quantities so it can sell (or at least market) large numbers of things to large numbers of people. Government wants “your data” to sort through it automatically in search of a very small number of people it might be interested in. The issues, risks, safeguards etc. are very different in each case and it’s positively unhelpful to confuse them.

  7. Matthew G. Saroff

    Given the proclivity of both law enforcement and private data brokers to evade regulations, the law should be simplified to basically read, “It is a felony for any government agency to acquire data from a 3rd party if the collection of that data would be unlawful if done by the agency directly.

    This would completely destroy Peter Thiel’s business model for Palantir, and I am so sad for him. (Not)

    1. Synoia

      Better

      1. It is illegal to collect data on minors, under the pain of death

      2. For every data element collected, the collector must pay the collectee their age in $.

  8. Tom Pfotzer

    Hooray for curmudgeons and the modern Luddites!

    At this point, the only way to preserve what little remains of our privacy is to not use the services wherein “you are the product”. Even if it’s not free (cell phone service, for ex), you must still surrender a lot of info about yourself in order to use that service.

    And if it is “free”…. of course it actually isn’t. The actual price of that service you’re using is your future political and economic agency (volition).

    So here’s the rub. We want privacy and good service, but we sure do like “free”.

    Are you getting the sense that we “consumers” are gradually coming to understand how high the price of “free” actually is? Is there some corresponding psychological movement toward paying for what we use?

    Because there’s a truism in Internet land, much appreciated by venture capitalists, that “it has to appear to be free, or people won’t use it”.

    ======
    Separately…I second this assertion made by Yves above:

    “… no, I don’t believe any of these bloody device-makers have GPS location functions that you can really truly turn it off. I guarantee there are backdoors and the NSA knows all about them.”

  9. Sue inSoCal

    I agree with Yves as well. There’s no possible way to turn off the geolocation. I’ve never used Siri, I’ve deleted Google maps, location settings and don’t use outside apps. Does not matter. I believe stating a site is not going to “sell” your data means absolutely nothing. My suspicion is the data is given over to heaven knows whom with some deal making, and then sold to third parties. Look at California. Imho, the “do not sell my information” law in CA means nothing. I’m by no means tech knowledgeable; I’m just ticked off. I wish I were optimistic that this Titanic can be reversed. That said, what’s this little cord to cut of the location battery?? That’d make my day!

      1. Yves Smith Post author

        No, this claim has been repeatedly misrepresented. You can go read the weasel-wordy language on the claims about smartphones v. dumbphones.

        1. Even when it is used, triangulation is too approximate to be used to locate a suspect for evidence in court

        2. Cell phone companies retain data that could be used for triangulation purposes ONLY when your dumbphone is in use, as in you are texting or making/receiving calls.

        3. The only exception to 1. is when there is a search warrant on you. Then the authorities ping your phone and the phone company tracks the pings to triangulate on an ongoing basis. But see 1. Can’t be used in court.

        Even so, I very very rarely carry a phone. And I do not want a smartphone. I am on the Internet nearly all day and when I leave my desk, I don’t want to be bothered.

        If tech finally forces me to carry a smartphone, mine will live nearly all the time in a Faraday bag.

  10. lobelia

    Matthew G. Saroff, April 22, 2021 at 12:52 pm, regarding:

    Given the proclivity of both law enforcement and private data brokers to evade regulations, the law should be simplified to basically read, “It is a felony for any government agency to acquire data from a 3rd party if the collection of that data would be unlawful if done by the agency directly.

    This would completely destroy Peter Thiel’s business model for Palantir, and I am so sad for him. (Not)

    Indeed, and odd that Palantir is not even brought up in the piece???

    I agree with none, April 22, 2021 at 6:40 am:

    Keeping the gubmint from buying that data is all nice and dandy, but the corporations who have it to sell are every bit as bad, and they themselves will use it in worse and worse ways even without the gubmint using it. So we need laws to stop them from collecting it in the first place, not just selling it on.

    https://www.bloomberg.com/news/features/2017-11-15/the-brutal-fight-to-mine-your-data-and-sell-it-to-your-boss

    Much of this vile data has the power to destroy lives (permanently); worse, much of it can be erroneous, or malicious slander. Many aren’t even aware of it being on file against them and have no prayer to have it deleted, even when they find out. It’s spurned another vile industry of supposed data reputation protection, which may spurn yet another industry of data reputation protection industry brokers????

    gotta run

  11. Synoia

    I, and a few colleagues, put together a design for completely untraceable phomes the current cell system.

    It requires a special phone, and “switching” system. Its is very feasible.

    The mods to the phone are small software changes, and the switching system is open source.

    Funding? Not even a nibble from investors.

  12. lobelia

    Sigh, in my comment above, I meant “spawned,” not “spurned.”

    Also, I appreciate much of Synoia’s recent input, although I would add that many take cellphones with them now to contact those who care about them if something happens to them (and vice versa), because there are no phone booths, and sickeningly, even highway emergency call box phones at the side of the road have been considered unnecessary and apparently removed.

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