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In this photo illustration, the WhatsApp application is displayed on an iPhone on April 6, 2016 in San Anselmo, California. (Photo: Justin Sullivan via Getty Images)

In this photo illustration, the WhatsApp application is displayed on an iPhone on April 6, 2016 in San Anselmo, California. (Photo: Justin Sullivan via Getty Images)

Rights Groups Demand Hearings on the 'Fourth Amendment Is Not For Sale Act'

"The longer Congress waits," warned one advocate, "the stronger and more dangerous this industry will become."

Kenny Stancil

More than four dozen consumer advocacy, media justice, and privacy rights groups on Wednesday urged the Senate and House Judiciary Committees to hold hearings on the Fourth Amendment Is Not For Sale Act—a bill meant to curb warrantless mass surveillance—as soon as possible.

"This legislation would stop this flagrant abuse of our privacy and shut down a clandestine business sector that trades away our essential rights for profit."

Introduced in April 2021, the Fourth Amendment Is Not For Sale Act aims to close major loopholes in federal privacy laws—including the Electronic Communications Privacy Act and the Foreign Intelligence Surveillance Act—to protect U.S. residents from unlawful searches and seizures, one of the key civil liberties spelled out in the Bill of Rights. If passed, the legislation would require government authorities to obtain a court order before accessing data through third-party brokers.

For years, federal agencies have exploited legal loopholes to purchase massive amounts of personal information sold by data merchants who harvest sensitive material from cellphone and internet users—enabling them to conduct digital searches without congressional or judicial authorization.

"There's no reason information scavenged by data brokers should be treated differently under the Fourth Amendment," Free Press Action's Nora Benavidez said in a statement

The Fourth Amendment Is Not For Sale Act, Benavidez added, "ensures that law enforcement and intelligence agencies can't do an end run around the Constitution to get to your data. Enacting this legislation would stop this flagrant abuse of our privacy and shut down a clandestine business sector that trades away our essential rights for profit."

In a letter sent to the committee leaders—Sens. Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) and Reps. Jerry Nadler (N.Y.) and Jim Jordan (R-Ohio)—the coalition that includes the ACLU, the Brennan Center for Justice, Demand Progress, and Free Press Action argued that "this legislation enjoys bipartisan support in both chambers for a good reason—what the government is doing is alarming."

"Intelligence and law enforcement agencies, from the Internal Revenue Service to the Drug Enforcement Administration, the Federal Bureau of Investigation, and Customs and Border Protection, allege they can lawfully avoid the constitutional requirement for probable cause warrants by simply buying our personal information from commercial data brokers," says the letter. "They can do this, they claim, because the relevant federal statutes were written at a time when apps and digital brokers did not exist and therefore do not specifically prohibit such actions."

"As a result, data from apps most Americans routinely use are open to warrantless examination by the government," the letter continues. "Data sources that the government has exploited include gaming apps that produce data that can be used to target children and a Muslim prayer app that can be used to target Americans by their religion. Communities of color, more reliant on cellphones for access to the internet, are disproportionately impacted."

As the coalition notes, the data that has been purchased in huge quantities includes "geolocation information and other details that the government can use to determine Americans' activities, associations, and even beliefs."

"We need a hearing to reveal to Congress and the American people the extent to which our information is being accessed by law enforcement and intelligence agencies at will."

Elizabeth Goitein of the Brennan Center for Justice stressed that "the Fourth Amendment's warrant requirement protects not only our privacy, but our freedoms of association, religion, and belief."

"The government should not be able to buy its way around these fundamental rights," said Goitein.

Bob Goodlatte, a former chairman of the House Judiciary Committee who is now a senior policy adviser to the Project for Privacy and Surveillance Accountability, pointed out that "there is no clause in the Fourth Amendment of the Constitution that says warrants are needed to search and seize our personal effects, except when government decides to buy them."

"And yet that's what intelligence and law enforcement agencies are doing—buying our most sensitive and personal information from data brokers," said Goodlatte. "We need a hearing to reveal to Congress and the American people the extent to which our information is being accessed by law enforcement and intelligence agencies at will."

According to the coalition: "Most Americans are still unaware that our government can obtain our most personal information by simply opening the federal wallet. If they knew this, they would undoubtedly find this practice offensive to the spirit of the Constitution. They would see it as a threat to the First and Fourth Amendment rights of every American."

"But without a hearing to drive the news, most Americans will never know how seriously their privacy has been compromised," the groups added. "We believe hearings in the Senate Judiciary Committee and House Judiciary Committee in early 2022—underscoring these disturbing facts and perhaps uncovering new ones—would inform the American public and create the momentum needed to turn your bill into law."

Sean Vitka, senior policy counsel at Demand Progress, said that "failure to act is unconscionable."

"The longer Congress waits," he warned, "the stronger and more dangerous this industry will become."


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