Spotlight on Data Sales and the Fourth Amendment: Two Bipartisan Bills in the House

With so much going on in the privacy space, it can be hard to keep track of everything. For example, while you were struggling to keep pace with rapidly advancing state privacy laws, FTC and EU privacy developments, market and technological changes, and various proposals to protect children’s privacy, you might have missed some eye-opening developments regarding the government’s purchase of consumer data from data brokers and other third party data sellers.

Specifically, the House has advanced two bipartisan proposals to limit such purchases. If even one of these proposals were enacted, it would represent one of the more significant privacy actions taken by Congress in a long time. Here are the details:

Privacy Amendment in the House NDAA Bill

Some of the last minute amendments to the National Defense Authorization Act (NDAA) bill passed by the House have generated a lot of controversy and concern. But a privacy amendment offered by Rep. Davidson (R-OH) slipped through largely unnoticed.

The amendment would prohibit the Department of Defense (DOD) from acquir[ing] location information, web browsing history, Internet search history, and Fourth Amendment protected information” of US persons inside the US for (1) foreign intelligence purposes, except as permitted under the Foreign Intelligence Surveillance Act (FISA), or (2) law enforcement purposes, except with a warrant demonstrating probable cause.

The amendment would further require that, if the interception, compelled production, or physical search and seizure of information would require a warrant, court order, or subpoena under law, DOD may not obtain that information from a third party without obtaining the warrant, court order, or subpoena. There is an exception if the information being sought is aggregated or anonymized so that it cannot reasonably be de-anonymized or otherwise linked to any individual or groups of individuals” and DOD does not disclose the information to any law enforcement agency or to the intelligence community.

The other sponsors of this amendment (seven of them) included Rep. Jacobs (D-CA). As readers may know, Jacobs is also the lead sponsor of the My Body, My Data Act, a bill that would limit how women’s reproductive and sexual health data may be collected, used, and shared with third parties.

The House’s The Fourth Amendment is Not for Sale” Act

Just as the NDAA was passing the House, Rep. Davidson also introduced a bill (HR. 4639) to place similar limits on how the government (not just DOD) acquires consumer data from electronic communications providers (e.g., providers of phone and email service). The bill is co-sponsored by House Judiciary Ranking Member Nadler (D-NY), as well as Rep. Jacobs and other supporters of the NDAA amendment. Like the NDAA amendment, the bill provides protections for consumers’ location information, web browsing history, Internet search history, and Fourth Amendment protected information.

In brief, and as summarized here, the bill amends portions of the Electronic Communications Privacy Act of 1986 (ECPA), which restricts how the government can obtain people’s communications from electronic service providers. Among other things, the House bill requires the government to obtain a court order to obtain consumer data from data brokers. It also closes the loophole” that has allowed the government to purchase data from data brokers and other sellers without obtaining a warrant, court order, or subpoena as required under ECPA and FISA. On July 19, the House Judiciary Committee marked up the bill, with broad support from both sides of the aisle. The next step will be a vote on the House floor.

Rep. Davidson’s bill is similar to a proposal (also called the Fourth Amendment is Not for Sale Act) that Sen. Wyden (D-OR) introduced last year in the Senate, with support from a number of bipartisan co-sponsors. Wyden has told the press (in an article behind a pay wall) that he doesn’t intend to reintroduce that bill this year, but that he plans to incorporate similar protections into a comprehensive surveillance reform bill that he is developing.

Why is this Significant?

The data privacy limits proposed here reflect simmering concerns about the ease with which the government can purchase consumers’ sensitive data from data brokers and other sellers to get around the privacy restrictions imposed under the Constitution and US laws. The repeal of Dobbs has added to these concerns, raising fears that government entities in anti-abortion states will purchase information revealing details about women’s health and location and use it for law enforcement purposes.

As noted above, federal laws (including FISA and ECPA) impose limits on the ability of the government to obtain consumer information from certain entities and/or for certain activities without a warrant, court order, or subpoena. Further, in US v. Carpenter, the Supreme Court held that the government’s acquisition of a person’s cell phone records from a wireless carrier (which can reveal a person’s precise location over time) was a 4th amendment protected search, requiring a warrant supported by probable cause.

However, several years ago, the Wall Street Journal and other news outlets started reporting that the government was getting around these restrictions by purchasing consumer data from data brokers and other sellers, rather than seeking it directly, pursuant to federal laws. This prompted efforts in Congress to close this loophole” through legislation such as Sen. Wyden’s bill. Now, with these two House proposals, these efforts appear to be gaining bipartisan steam.

It’s far from certain that these proposals will end up becoming law. The House NDAA must now be reconciled with the version passed in the Senate, which doesn’t include Davidson’s amendment language. Further, if Wyden doesn’t re-introduce his bill in the Senate, but instead incorporates its protections in broader and potentially more controversial legislation, it could get tied up and fail to advance. Nevertheless, the bipartisan support that these proposals have received in the House could be a sign of more to come.