Make no mistake about it: data privacy remains an huge issue that America struggles with constantly. Whether it be data broker companies who sell your data, the State of Arizona, or federal government, America values personal privacy data protection less than Europe, so much so that data is often collected, sold, repacked and repurposed to the organization that buys it.
In January, we blogged about whether the police need a warrant to access a person’s cell phone data. For that blog, click here.
This post is a follow up to that blog, in light of recent legislation that would continue to protect our privacy rights.
FOURTH AMENDMENT IS NOT FOR SALE ACT
Recently, a large proposed legislation, called the Fourth Amendment Is Not For Sale Act, is winning support from both Democrats and Republicans. In short, the legislations aims to ban law enforcement agencies from buying data from the firm known as Clearview AI. Additionally, it aims to force agencies to get a warrant before sourcing location data from private data brokers.
It appears that lawmakers are now seeing the 4th Amendment concerns with widespread facial recognition technology. Law enforcement uses with widespread tech, using images from social media, to obtain information through our smartphones, and apps.
There is support from sponsors such as Senators Rand Paul, Chuck Schumer, Cory Booker, Bernie Sanders, and Mike Lee.
One sponsor of the legislation, Senator Ron Wyden, commented on the legislation with the following:
“Doing business online doesn’t amount to giving the government permission to track your every movement or rifle through the most personal details of your life…There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider. This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment.”
While the specifics of the bill is still being worked out, here is what we know so far. The bill addresses several issues, including location data, requiring agencies to obtain a formal court order to data gather from brokers. This disallows law enforcement to buy the data from the data brokers. For example, in February of 2020, the Wall Street Journal reported that the Immigration and Customs Enforcement and Border Protection agency was buying location data that was harvested by the private company Venntel.
PROTECTING OUR 4TH AMENDMENT RIGHTS
This is a large step towards protecting citizens under the 4th Amendment. While the Supreme Court ruled that agencies need a warrant (and thus probable cause) to obtain a person’s location via cell phone data, agencies continue to buy the data on the open market.
For a breakdown on that Supreme Court case, click here.
For data brokers who sell to the government, the bill would ban agencies from buying data that has been obtained illicitly, or by violation the terms of services. Companies such as Clearview have databases that harvest social media sites and through other means of online access.
Senator Paul commented on the importance of this bill with the following:
“This critical legislation will put an end to the government’s practice of buying its way around the Bill of Rights by purchasing the personal and location data of everyday Americans. Enacting the Fourth Amendment is Not For Sale Act will not only stop this gross abuse of privacy, but also stands for the fundamental principle that government exists to protect, not trade away, individual rights…”
HOW THIS IMPACTS DATA COMPANIES
Lawmakers, Democrat and Republican alike, have shown strong bipartisan interest on exactly how information is being sold, and to whom, and how that information is being used. With impacts that will likely impact advertising data, data harvesters, it appears that some data companies have shown support. The digital ad industry’s largest group, the Interactive Advertising Bureau, supports the bill, amongst others such as the Network Advertising Initiative, the American Civil Liberties Union, the Electric Frontier Foundation and Mozilla.
This effort appears to be a call to scrutinize how data is collected from commercial business to governments, including foreign ones as well. With few Americans knowledgeable about how their personal data is used and sold, it seems that lawmakers are seeking to know what types of data the these companies collect, and how our behavior online is sold and used.
Senator Ron Wyden made a powerful point about online privacy with the following:
“Doing business online doesn’t amount to giving the government permission to track your every movement or rifle through the most personal details of your life. There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider. This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment.
The Fourth Amendment’s protection against unreasonable search and seizure ensures that the liberty of every American cannot be violated on the whims, or financial transactions, of every government officer,” Paul said. “This critical legislation will put an end to the government’s practice of buying its way around the Bill of Rights by purchasing the personal and location data of everyday Americans. Enacting the Fourth Amendment is Not For Sale Act will not only stop this gross abuse of privacy, but also stands for the fundamental principle that government exists to protect, not trade away, individual rights.”
HOW THIS IMPACTS US
If passed, this would be a major step for personal privacy rights in the age of digital technology. Unlike Europe’s privacy laws, America has historically taken a much more laid back approach during the data and tech boom of the 90’s and 2000’s. Now, in light of data breach stories and landmark Supreme Court cases, lawmakers are beginning to see the writing on the wall: America needs law on the books that holds the government to a higher standard when seeking to obtain our personal data.
With well over 4,000 data brokering companies worldwide, this data collection harvesting is booming business, yet often unseen, and unheard of, by most Americans. And while the Federal Trade Commission (FTC) is the agency that would ideally regulate data brokers within the U.S., there is still no agreement on exactly how to regulate data harvesting. In fact, the FTC even recommended that the burden is on the consumer to “opt-out” of data collection and harvesting. But, if most Americans are unaware of the issue at all, how can the FTC expect them to realize the consequences of data harvesting?
While the FTC may have missed the mark to protect Americans, this new bill appears to be on the right track for our privacy. We will see whether Congress passes the bill and enacts it into law.
No matter how carefully you may protect your data, it can be collected, sold and traded. This year, it appears that America has now realized the problems with data collection, for both private and government use. No longer should Americans bear the sole burden of protecting their own privacy.
With this bill slowly pacing its way through Congress, 2021 is shaping up to be a huge year for privacy and 4th Amendment concerns. The stakes could not be any higher.
If you or your loved one face criminal charges stemming from privacy violations, contact us at 480-545-0700, or visit Chuck Franklin Law.com. Experience in these cases MATTER.
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