By BOB GOODLATTE AND MARK UDALL
Published on CHICAGO TRIBUNE
MAY 05, 2021 AT 12:06 PM
In the back of our minds, we know the “free” social media platforms and cellphone apps we use are not truly free. We always pay a cost in privacy. When your Facebook account shows you an ad for pet food or home exercise equipment, it is drawing on a highly detailed portrait assembled from your clicks and choices.
Throughout our day, sensitive data points that include our location, our browsing history and demographic details are captured to update a precise digital portrait of our interests, beliefs, actions and movements. This information is then shared with hundreds of bidders in a digital auction. This “real-time bidding” takes place in a few milliseconds in order to match you with an ad that you might click.
But the journey does not end there. Companies use your “bidstream” data to create a digital dossier that can predict your behaviors by mapping your past actions, which can then be sold by data brokers to hedge funds, marketers and political campaigns.
Some of these brokers also sell your personal information to the government, which amounts to a treasure trove of personal information for intelligence agencies and law enforcement to scan without having to bother with the pesky Fourth Amendment requirement for a probable cause warrant.
The U.S. Constitution requires the government to obtain such a warrant from a court before searching or seizing our “effects.” By tapping into Uncle Sam’s checkbook, however, the Defense Intelligence Agency, the Department of Homeland Security, the IRS and likely other agencies are sidestepping this basic requirement to obtain warrantless access to billions of digital “effects” on millions of Americans. The government is even purchasing access to billions of photos, downloaded in bulk by a data broker from Facebook, LinkedIn, Twitter and YouTube. According to media reports, our images are being illicitly scraped in violation of the terms of service of these popular social media platforms.
No one in Congress today has been more diligent in tracking and attempting to curb such excesses of government violations of Americans’ privacy than Sen. Ron Wyden, D-Oregon. He recently introduced landmark privacy legislation, the Fourth Amendment Is Not for Sale Act, that would close major loopholes in the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act that the government is exploiting to simply buy our most sensitive and personal data.
Under current law, the government cannot compel tech and phone companies to disclose our information without a court order. Why should data brokers be treated any differently? Under Wyden’s proposal, the government would have to get a court order to force data brokers to disclose our information.
This legislation extends existing privacy laws to data cables and cell towers, so the government can’t do a “workaround” through infrastructure. It closes loopholes that permit the intelligence agencies to buy or otherwise acquire metadata about Americans’ international calls, texts and emails to family and friends abroad, and obtain records about their web browsing of foreign websites — the kind of disclosures that would normally require a court order.
The Wyden bill also takes away the ability of the attorney general to grant civil immunity to companies that assist with surveillance that is not required or permitted by statute. This is one of the most effective proposals Wyden offers. If data providers, whether tech firms, telecoms or data brokers, know that legal liability comes with obeying an illegal order, it is unlikely any will comply.
Don’t expect surveillance hawks to cheer this legislation, but they have no real reason to oppose it. If Wyden’s measure passes, U.S. law enforcement and intelligence agencies will still have powerful legal tools at their fingertips with which to follow leads that can catch terrorists, spies and dangerous criminals. They will just have to follow the rules.
The alternative is to let the practice of checkbook surveillance grow in scale and scope. If this subterranean subversion of our Constitution continues, the United States will be taking a long step toward granting our government the sort of omniscience over Americans that the People’s Republic of China enjoys over its people. While the intentions of many in the agencies and law enforcement are commendable, recent events suggest that our most admired institutions can be corrupted by political pressure and partisan bias.
It is time for policymakers to either respect the Fourth Amendment or publicly admit, as Hamlet said, it’s a custom more honored in the breach.
Bob Goodlatte is a former congressman from Virginia, the former chairman of the House Judiciary Committee, and now senior policy adviser with the Project for Privacy and Surveillance Accountability. Mark Udall is a former senator from Colorado who served on the Senate Select Committee on Intelligence.
TAKE ACTION: Contact your US Senators and your representative(s). Request support for the 4th Amendment is not for Sale Act (Wyden Bill) to protect your data and privacy now!