Fourth Amendment is Not for Sale Act

Floor Speech

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.

Mr. Chairman, I rise in strong support of H.R. 4639, the Fourth Amendment Is Not For Sale Act. I was proud to join Congressman Davidson in introducing this strong bipartisan legislation to help prevent government overreach by prohibiting the warrantless purchase of customer data. When the Judiciary Committee considered this bill at markup last July, it received, as Ms. Hageman noted, a rare unanimous 30-0 vote.

When we download applications to our phones, we do so because we think they will make our lives just a little bit better. Weather apps tell us if we should bring an umbrella to work, delivery apps allow us to order groceries to our homes, and even employee work apps let us know the schedule for the week. Some of these convenience applications, however, can come with a dark side that they generally do not disclose to the American public, that the data they collect from us is immediately sold to the highest bidder.

Third-party purchasers of this data, often referred to as ``data brokers,'' collect and package the data to sell to advertisers, market researchers, and government entities, to name a few. While many argue that the data they purchase from applications, websites, and social media is deidentified when it is sold, experts agree that just four points of data are needed to reidentify this data.

Because of this, the purchaser of a dataset can piece together significant information about us. For example, they can track an individual's commuting habits, including which businesses they drive by on their way to work, when they are not at home, and even when they visit places that are not part of their normal commute.

That anyone should have Americans' private information is highly troubling to me. But that our Federal Government can obtain it without a warrant should be troubling to all of us.

The Supreme Court in U.S. v. Jones unanimously found that the government's use of a GPS tracker on the subject's car is considered a search under the Fourth Amendment. But in 2004, when the search in Jones occurred, not everyone had a phone in their pocket--the ecosystem of data brokers had not yet come to life.

If the government wants to track a suspect today, they can go through the trouble of establishing probable cause in getting a warrant, which is what they should do, or Federal law enforcement could simply purchase data from a third party about the target of their operation.

If that purchased data included location data for their subject, they would have no need for checks and balances, no need for a warrant, and during an ensuing criminal trial, no obligation even to tell the court how they obtained the initial data in the first place.

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 is probable cause and why they need to know this information. When Federal law enforcement agencies purchase this data, however, they bypass our judicial system entirely.

Our current state of affairs is clearly not what our Founders intended. Our right to privacy is being abrogated every day by those whose job it is to keep us safe. The Fourth Amendment Is Not For Sale Act would change that.

Under the bill before us today, the Federal Government would be prohibited from exchanging anything of value for data from third-party vendors. The law already prohibits applications and websites, electronic communication services, and remote computing services from sharing information with the government without a warrant.

The Fourth Amendment Is Not For Sale Act would extend that same rule to the data brokers to which they sell. This legislation would also ensure that the government does not circumvent these rules by prohibiting both indirect acquisition of information and agency sharing of third-party data.

This way, Federal law enforcement could neither acquire prohibited data from individuals who purchase the data and then pass it on to the government, nor could they receive the desired data from non-law enforcement Federal agencies.

The whole point of this bill is to stop the end run that is being done around the Fourth Amendment because of modern technology.

I thank Congressman Davidson and Chairman Jordan for their leadership, and I thank my Democratic colleagues, Representatives Lofgren, Jayapal, and Jacobs for their hard work to get the bill to the floor.

I encourage my colleagues to vote ``yes'' on this legislation, and I reserve the balance of my time.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I yield 2 minutes to the distinguished gentlewoman from Washington (Ms. Jayapal).

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I yield 2 minutes to the distinguished gentlewoman from California (Ms. Jacobs).

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.

Mr. Chairman, data brokers collect massive amounts of information about Americans that can track and identify our most intimate details. It is bad enough that companies have access to all this personal data, but now the government can access this data, too, without securing a warrant just by purchasing it on the open market. This amounts to an end run around the Fourth Amendment.

This legislation would end this practice and protect our privacy as the Constitution demands.

Mr. Chair, I urge all Members to support it, and I yield back the balance of my time.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I claim the time in opposition to the amendment, even though I am not opposed to it.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I yield myself such time as I may consume.

Mr. Chair, this amendment makes technical changes to the bill to clarify that it does not interfere with section 702 of FISA. FISA, including but not limited to section 702, is the only way the government should acquire data that in any other scenario would need a warrant. While we may have different opinions on how the government should treat the incidentally collected U.S. person data, as we debated last week, we should all agree that this bill is not intended to address or affect section 702 in any way.

This amendment is a technical change to correct a minor error in the bill, and I hope that all Members will support it.

I thank my colleague for offering the amendment, and I yield back the balance of my time.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I claim the time in opposition to the amendment, although I am not opposed to it.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I yield myself such time as I may consume.

Mr. Chair, this amendment will clarify that the underlying bill will not impact information that is publicly available, that the government has in its own databases, or that the government lawfully acquires. Scraping pictures and data off public social media accounts for facial recognition technology is certainly a problem, but it is not this problem.

It does us no good to conflate one surveillance issue with another. This legislation is intended to prohibit the purchase of data in cases where Federal law enforcement would otherwise need a warrant. License plate databases, facial recognition technology platforms, and advanced policing technologies are often powered by publicly available data.

We are not here to impede government access to data that is public or that law enforcement already contains in its databases. While I have serious concerns about the irresponsible deployment of advanced policing technologies, those are fights for another day.

Mr. Chairman, I thank the gentleman for his amendment. I encourage my colleagues to join me in supporting it, and I yield back the balance of my time.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I claim the time in opposition.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, this amendment would create exceptions for government purchase of data that a Federal agency can already lawfully access without a warrant. I am sure that my colleague from New York means well, but I worry that this amendment would create confusion in the long run rather than clarify an area where we both agree.

I agree that the government should continue accessing information that it is already able to acquire without a warrant, but we should be closing the door on government purchase of third-party data, period.

First, it is unclear how a data broker subscription for ``only information that law enforcement could acquire without a warrant'' would work. By suggesting that some data could be purchased, we open up a Pandora's box of hypotheticals instead of turning off a tap that should not be on to begin with.

Second, when section 2703 of the Electronic Communications Privacy Act was passed back in 1986, the internet was in its nascency. At that time, there were few, if any, data brokers purchasing data and selling it to the government. I am confident that if they had existed, then third parties' data sales would have been included in the prohibition against service providers sharing their data with the government without a warrant.

As I said, I appreciate what the gentleman is trying to do, but I cannot agree with this approach.

Mr. Chair, I oppose the amendment, and I encourage my colleagues to do the same.

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I yield 2 minutes to the gentleman from Ohio (Mr. Davidson).

BREAK IN TRANSCRIPT

Mr. NADLER. Mr. Chair, I yield myself the balance of my time.

Mr. Chair, I urge my colleagues to vote against this amendment. We all support the police and criminal investigations, but we all support, we hope, the Fourth Amendment, the requirement to get a warrant for probable cause in order to search something or somebody.

This bill is to avoid an end run around that by the government purchasing information from data brokers for which they should need a warrant. This amendment would gut that and destroy the whole purpose of the bill.

The bill is essential to protecting liberty and to protecting the protections of the Fourth Amendment.

Mr. Chair, I urge the defeat of this amendment, and I yield back the balance of my time.

BREAK IN TRANSCRIPT

Source