OTI Endorses Fourth Amendment is Not for Sale Act, a “Crucial Bill” for Privacy

Today, Senator Ron Wyden (D-Ore.) and House Judiciary Chairman Jerrold Nadler (D-N.Y.) introduced the Fourth Amendment Is Not For Sale Act alongside a bipartisan group of senators and congress members. The bill would ban the federal government from purchasing data on individuals within the United States from data brokers without a warrant. New America’s Open Technology Institute (OTI) endorses this important legislation, and urges Congress to take it up without delay.

Recent reporting suggests that government law enforcement agencies are increasingly buying data from these third-party data brokers, which aggregate and sell individuals’ sensitive personal data, often location data, for profit. The U.S. military, through its contractors, has been purchasing location data from a broker that compiled its data from a popular Muslim prayer app and a Muslim dating app, among others; the Department of Homeland Security (DHS), Immigration and Customs Enforcement (ICE), and Customs and Border Protection (CBP) have similarly used a commercial database of location information to detect, and potentially arrest or deport, undocumented immigrants. In each of these cases, the federal government is making an end-run around Supreme Court precedent set in Carpenter v. United States. Recognizing that tracking the movements of a specific individual over time is extremely invasive, the Carpenter court held that if a law enforcement agency wants to obtain location information on a particular individual for seven days or more, it must have a warrant. By outlawing the purchase of data where a court order would otherwise be required, the Fourth Amendment Is Not For Sale Act would ensure that the government can no longer skirt these Fourth Amendment rules.

In particular, the Fourth Amendment Is Not For Sale Act would, significantly, end the government’s problematic use of ClearviewAI. As BuzzFeed News detailed in a series of reports, a variety of law enforcement agencies, including DHS, ICE, and CBP, have used the controversial ClearviewAI facial recognition tool, which compiles databases for facial recognition searches using photos secretly scraped from social media sites. Clearview AI has repeatedly violated the civil rights and privacy of many. As civil rights, racial justice, and technology policy organizations including OTI have recently urged, the government should immediately discontinue its use.

The following quote can be attributed to Lauren Sarkesian, senior policy counsel at New America’s Open Technology Institute:

“The Fourth Amendment Is Not For Sale Act closes a surveillance loophole that the government appears to increasingly exploit. It is deeply troubling that even where there are explicit rules in place limiting law enforcement’s surveillance power, government agencies are seeking ways to circumvent those rules—and often do so using taxpayer dollars. Under no circumstance should the government be able to purchase data it would otherwise need a warrant to obtain, and this bill would clarify that. Congress should move this crucial bill forward quickly.”