A growing number of House and Senate members are supporting the Fourth Amendment Is Not for Sale Act, which would require law enforcement and intelligence agencies to obtain a probable cause warrant before accessing Americans’ personal information purchased from a private-sector data broker.
But what about non-state actors buying our information?
A recent lawsuit brought against private-data broker Kochava by the Federal Trade Commission reveals the horrific exposure of Americans’ most personal data to unseen – and possibly unknown – private actors.
Kochava claims to have “rich geo data spanning billions of devices globally,” with location data feed that “delivers raw latitude/longitude data with volumes around 94B-plus billion geo transactions per month, 125 million monthly active users, and 35 million daily active users, on average observing more than 90 daily transactions per device.”
In its filing on Aug. 29, the FTC writes that a purchaser would only need to provide Kochava a personal email address and describe the intended use as “business” to gain access to your data from Kochava.
“The location data provided by Kochava is not anonymized,” the FTC filing asserts. “It is possible to use the geolocation data, combined with the mobile devices MAID (Mobile Advertising ID), to identify the mobile device’s user or owner.”
The FTC claims:
“Precise geolocation data associated with MAIDs, such as the data sold by Kochava, may be used to track consumers to sensitive locations, including places of religious worship, places that may be used to infer an LGBTQ+ identification, domestic abuse shelters, medical facilities, and welfare and homeless shelters.” It can identify women who visit reproductive clinics and people who attend services at Jewish, Christian, Islamic and other religious denominations’ places of worship.
Kochava, the FTC claims, does not employ a blacklist that removes or obfuscates data-set location signals from these sensitive locations.
The facts presented by the FTC, as alarming as they are, should not get mixed up in the separate debate on the Hill over restricting the government’s ability to purchase our private data. The many federal agencies that buy our data are not just violating our privacy. They are eviscerating the plain meaning of the Constitution’s Fourth Amendment, which requires government to get a warrant from a court to access our personal information.
The solution to private-sector access to personal information is a deep and complex debate taking place within multiple Congressional committees and stakeholders from business and consumer groups. Passing the Fourth Amendment Is Not for Sale Act in this Congress, which would close off the government’s warrantless access to Americans’ personal information, would be a strong predicate for that next step in the privacy debate.
In a hearing over the summer, the House Judiciary Committee took a hard look at the way in which private data brokers freely sell Americans most personal information to a host of government law enforcement and intelligence agencies.
Chairman Jerry Nadler said that digital tracking is “so precise that officers can track individuals within specific homes and businesses … tracking your location over time, within inches, without any due process whatsoever.
“The end result is that, just by going about your daily life, your data may be swept up in and make you the subject of a criminal investigation … If law enforcement and intelligence agencies remain unrestrained in their ability to purchase this data, our right to privacy will be at best illusory.”
Ranking Member Jim Jordan said that the government continues to transform guardrails meant to protect privacy into loopholes to allow the government to do whatever it wants. Jordan said, “this is wrong and it’s un-American.”
Representatives of both parties expressed dismay about how freely federal agencies utilize and abuse surveillance powers in defiance of the Fourth Amendment. Rep. Zoe Lofgren detailed the many ways the U.S. Immigration and Customs Enforcement agency tracks Americans’ daily movements and extracts personal information from utility records. Rep. Andy Biggs spoke of the uses to which the government can employ geolocation tracking against Americans.
In short, the House Judiciary Committee did an excellent job of teeing up the issue. Now it is time to swing the club for a legislative solution.
On Wednesday, PPSA joined with Americans for Prosperity, Demand Progress, the Due Process Institute and Free Press Action to call on the committee to take bipartisan action and mark up the Fourth Amendment Is Not for Sale Act.
PPSA'S Goodlatte Testifies at House Judiciary Committee's Hearing On Fourth Amendment Is Not For Sale Act
Bob Goodlatte, PPSA Senior Policy Advisor, returns to the House Judiciary Committee, which he once chaired, to explain how the government sidesteps the constitutional requirement for a probable cause warrant by simply buying our personal digital information from private data brokers. He also discusses the need to pass The Fourth Amendment Is Not for Sale Act. You can read his testimony or listen to him testify, beginning at the 14:26 mark.
The U.S. House of Representatives today passed the NDO Fairness Act by voice vote. This legislation would restrain the government practice of using non-disclosure orders to block service providers from informing American consumers that their personal information held by third parties, often in the cloud, has been searched by the government.
“This was a strong stand by the House that Americans are concerned about privacy and will not grant the government carte blanche to riffle through our personal data in defiance of the Fourth Amendment to the Constitution,” said Bob Goodlatte, PPSA senior policy advisor and former Chairman of the House Judiciary Committee. “This measure earlier passed the Judiciary Committee by a unanimous, bipartisan voice vote – a good sign of how popular it is on both sides of the aisle. And kudos to Chairman Jerry Nadler and Ranking Member Jim Jordan for driving it to a successful floor vote.”
The Project for Privacy and Surveillance Accountability earlier joined with 11 other leading civil liberties organizations in sending a letter (see below) to every Member of the House urging passage.
“PPSA will now join with our civil liberties peer organizations to encourage passage of this legislation in the Senate,” Goodlatte said. “There is great support behind this bill by the American people, which should provide enough momentum to expeditiously propel this bill to final passage.”
This bill, H.R. 7072, passed by a unanimous, bipartisan voice vote in the House Judiciary Committee on April 6. Once enacted into law, this measure will rein in the widespread practice by the government in surveilling Americans’ email and internet records and then obtaining a non-disclosure order (NDO) to block service providers from notifying their customers that their personal information has been searched.
Under current practice, thousands of Americans – including many who are not even under investigation or suspected of any wrongdoing – will never know that records that could potentially reveal their health status, financial transactions, and personal relationships have been disclosed to the government. Recent media reports reveal that federal agencies have obtained non-disclosure orders when demanding the private data of Members of Congress, journalists at major news outlets, and law-abiding companies. If powerful individuals and institutions can be targeted in secret, just imagine how little power the average individual has in the face of such actions.
People who have been subject to surveillance should have a right to know that their personal information has been obtained by the government. Among other things, the secrecy imposed by a non-disclosure order has the effect of denying the person being investigated the ability to challenge such an order in court. In such cases, there may be no way to hold the government accountable for unlawful surveillance—a state of affairs that only increases the likelihood of improper conduct by the government.
The NDO Fairness Act is an important first step toward bringing balance to this system by amending 18 U.S.C. 2705 to require prosecutors to justify their non-disclosure orders in court and limit both initial orders and any extensions to a reasonable time period of 60 days. It would also require notice to customers 72 hours after these orders expire, including what information was disclosed.
This Act is not a comprehensive solution to the problem of notice. There are service providers who do not provide notice to their customers when the government obtains their data. In many of those cases, the targets of surveillance will continue to be unaware of the surveillance, as the government’s own legal obligations to notify the targets are far too weak. Nonetheless, the NDO Fairness Act makes a significant improvement to the status quo and could serve as a model for further efforts to contain secret government surveillance and data collection.
That is no doubt why the NDO Fairness Act enjoys wide, bipartisan support in the Judiciary Committee. It was introduced by Chairman Jerry Nadler and Rep. Scott Fitzgerald, and the committee markup session featured enthusiastic support from Ranking Member Jordan as well as other leading members of both parties.
The NDO Fairness Act is an important curb on governmental power that will help protect our rights without weakening the government’s ability to identify wrongdoers. We urge you to support the Act. And we stand ready to support and amplify your efforts.
Advocacy for Principled Action in Government
American Civil Liberties Union
Americans for Prosperity
Brennan Center for Justice at NYU School of Law
Free Press Action
Government Information Watch
Muslim Justice League
Project for Privacy and Surveillance Accountability
Restore The Fourth