Response to New York Times’s Shira Ovide: “Fourth Amendment Is Not for Sale Act” Is the Low-Hanging Fruit of the National Privacy Debate

​Shira Ovide of The New York Times wrote a thoughtful and wide-ranging piece on the need for a broad national data privacy law – and the frustrations of parsing the technical, economic, social and legislative complexities in devising such a law.
 
For a national approach to data privacy to become law, Ovide reports, Congress would need to do more than overcome its customary state of gridlock. It would have a Gordian knot of issues to slice through. For example, Congress would either have to agree with industry’s position that any federal law should overrule state privacy laws, or override only new laws and respect existing ones, or respect state laws.
 
Ovide also notes the potential for regulation to generate pointless activity or even make things worse for consumers. She points to the experience with Europe’s General Data Protection Regulation, which annoys people around the world with pop-up notices about data-tracking cookies. Ovide adds: “The first of two of California’s digital privacy provisions in theory gives people control over how their data is used, but in practice often involves filling out onerous forms.”
 
Go too far in one direction, and data-privacy laws could break the business models of whole industries and burden consumers with pointless disclaimers and notices. Go too far in another direction, and the current status quo of what Ovide calls the “unrestrained information-harvesting economy” would be merely ratified in law.
 
Our view is that an effective data-privacy law will probably have to evolve as technology evolves, with blockchain beginning to alter the structure and privacy potential of the internet. In the meantime, there is ready-made legislation supported by bipartisan leaders in both houses of Congress that can effectively fill in a big and missing piece of the privacy puzzle now – The Fourth Amendment Is Not for Sale Act.

​The analysis in The Times concerns the potential for misuse of personal data by corporations and other private entities. How commercial entities treat data is a vital question, but it is not the only important one. Recent revelations show that many federal law enforcement and intelligence agencies are side-stepping the constitutional requirement for a probable cause warrant by buying up Americans’ personal data – gleaned from popular social media platforms and apps – from unregulated private data companies.
 
Thus, government money can give government agents instant access to our friends and contacts, the places we go, what we believe, and even our medical concerns. Commercial entities may abuse our privacy. But the Founders created the warrant requirement to restrain government because it has the power to misuse information to falsely arrest, prosecute and imprison us. Yet the government today believes it can outsmart the Founders by merely opening its wallet.
 
The Fourth Amendment Is Not for Sale Act would close this loophole in current law by preventing data brokers from selling our personal information to federal agencies without an authorization by a court. Whenever privacy is discussed, the misuse of personal information by public entities should be included.