At a hearing hosted by the House Judiciary Committee titled Digital Dragnets: Examining the Government’s Access to Your Personal Data, witnesses testified that government agencies at all levels, including federal agencies such as the Department of Homeland Security (DHS), Central Intelligence Agency (CIA), Internal Revenue Service (IRS), and the Department of Defense (DOD), are collecting a massive amount of personal data on American citizens, sidestepping constitutional protections against unwarranted search and seizure provided in the Fourth Amendment.
House Judiciary Chairman Rep. Jerry Nadler (D-NY), opened the hearing by pointing out that while it is concerning that so much data is collected on citizens by private companies, “[i]t’s even more troubling that law enforcement and intelligence agencies at all levels of government are purchasing this data for their own use, often sidestepping protections designed to limit the direct acquisition of the exact same information.”
Rep. Nadler pointed out that law enforcement and intelligence agencies are able to obtain vast quantities of personal information without a warrant, such as “your physical location, your personal habits, your internet searches, your likes and dislikes, and your politics, to name just a few private concerns that are all available and accessible to the government.” He said these concerns have grown more urgent in the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which led to abortion being outlawed in over a dozen states, and likely in more in the future. Law enforcement agencies in these states may purchase personal data to find and prosecute people seeking reproductive health services.
In the hearing, Rep. Nadler called on the Honorable Bob Goodlatte– his predecessor as chairman of the House Judiciary Committee, a former Republican Congressman from Virginia’s 6th District, and now a Senior Policy Advisor at the nonpartisan Project for Privacy & Surveillance Accountability– to deliver the first witness statement. Goodlatte suggested that while consumers may be somewhat ambivalent about the amount of information they are providing to companies like Facebook and Google, the government’s access to this information is “far more ominous.”
“No private party can break down your door at dawn, take you out in handcuffs and prosecute you,” said Goodlatte. “No private party can fine you, enjoin you, restrain you, tax you, deprive you of liberty, and yes, even life. Only the government can do that.” Hon. Goodlatte advocated for the passage of the Fourth Amendment is Not For Sale Act, first introduced by Rep. Nadler last year.
The Republicans currently on the Committee also appear to support the legislation. For instance, while Rep. Jim Jordan (R-OH) laced in a litany of his typical concerns about government overreach into his comments, including over past COVID-19 restrictions on gatherings at religious facilities, supposed FISA abuses by the FBI, etc. he nevertheless seemed to agree that the reform is necessary. Rep. Ken Buck (R-CO) indicated his support. Likewise, Rep. Andy Biggs (R-AZ) urged Chairman Nadler to bring the Fourth Amendment is Not for Sale Act up for markup. “It is imperative that we do that,” he said, even as he made reference to the discredited film 2,000 Mules, which advanced false claims and conspiracy theories about supposed fraud in the 2020 election.
Rep. Matt Gaetz, R-FL, also agreed that Fourth Amendment is Not For Sale Act should move forward.
“I’ve heard enough, Mr. Chairman, I believe that we can have bipartisan agreement on legislation out of this committee. That might be the hallmark achievement of this Congress,” said Rep. Gaetz, pointing out that it is not only domestic governments that acquire such data on American citizens. (He then proceeded to harangue former Rep. Goodlatte over Disney’s allegedly problematic use of children’s data and to impugn Goodlatte for becoming a lobbyist after leaving Congress.)
Sarah Lamdan, a Professor of Law at The City University of New York School of Law, pointed out how the collection of personal data and its provision to law enforcement and government agencies has itself become an industry.
“One major difference between the compelled surveillance tools the government used in the past, and the datafied, ‘voluntary’ surveillance systems used today is that the data surveillance tools are not developed and deployed in-house,” Professor Lamdan testified. “They are created by companies that sell and license their products to government agencies. Instead of relying on human intelligence tools (conducting stakeouts, pursuing sources, questioning witnesses, and other human-led interactions), agencies are paying third parties to supply data and data analytics products. An entire industry of predictive policing services and personal data providers cater to government agencies that want to track and sort people by running personal data through analytics systems (algorithms, machine learning, and other data-crunching technologies). Government agencies don’t just buy access to our personal information, they also pay for predictions about who might commit crimes or pose risks in the future.”
Rebecca Wexler, Faculty Co-Director of the Berkeley Center for Law & Technology and Assistant Professor of Law at the University of California, Berkeley, School of Law noted that this industry sometimes only sells data to government agencies, and not to defense attorneys.
“Private vendors of surveillance technologies sometimes say their products are for law enforcement only, and refuse to give or sell copies to criminal defense experts for scrutiny and testing,” Professor Wexler testified. “Indeed, some companies even refuse research licenses to independent scientists to scrutinize and test their products, all the while claiming in court that those products are subject to peer review.”
Brett Tolman, Executive Director of Right on Crime, a campaign of the non-profit Texas Public Policy Foundation, pointed out that government collection of personal data through brokerages risks blurring the line between civil liberties in the U.S. and the overreach of authoritarian regimes.
“One needs only to look no further than Russia’s and China’s unconscionable and unfettered control over the digital footprint of its citizenry, where no expectation of privacy exists, said Tolman, “to appreciate the limitations the Fourth Amendment places upon government agencies in America.”
Elizabeth Goitein, Senior Director of the Liberty & National Security Program at the Brennan Center for Justice pointed out that the law must be clarified to prevent the government from sidestepping warrant requirements by simply writing “a big check.” Obtaining Fourth Amendment-protected information in unlimited quantities without suspicion of wrongdoing, probable cause, or a warrant, relies on dubious arguments by the agencies engaged in this activity.
“This is legal sophistry,” said Goiten.
Rep. Zoe Lofgren (D-CA) pointed out the “massive privacy violation” of Immigration and Customs Enforcement (ICE) collection of citizen personal data, citing the Georgetown Center on Privacy and Technology report “American Dragnet: Data Driven Deportation in the 21st Century.” She called the revelations at the hearing “chilling.”
In response to a question from Rep. Jordan, Professor Lamdan pointed out that it is important to police data brokers specifically, since even if restrictions are put on other companies that perform controversial tasks such as facial recognition, that data may still land in the hands of government officials through brokerages.
In a notable exchange, Rep. Buck brought up a variety of movies that depict various surveillance practices, querying Hon. Goodlatte on whether such practices are constitutional, unconstitutional, or at the very least “creepy.” He referenced the Bourne Ultimatum, for instance, which depicted what appeared to be the unconstitutional use of geolocation, as well as other films that depict the collection of bank of information and the use of fictional sensing technologies to see inside of structures such as homes. “Governments can’t do those things directly, and it shouldn’t be allowed to do those things indirectly,” said Rep. Buck, also querying whether private companies should be able to do such things, and connecting such concerns back to his agenda on antitrust.
“I think there has been broad bipartisan consensus here today among the witnesses and among the Members that the Fourth Amendment is Not for Sale Act is an important measure and that it should be passed quickly,” said the Brennan Center’s Goitens in response to a question from Rep. Mary Gay Scanlon (D-PA). “What that law will do is it will close some of the gaps that technology has opened up in the Electronic Communications Privacy Act and also the Foreign Intelligence Surveillance Act, so it will plug the gaps in existing laws that allow the government to evade those laws. That’s something that can be done quickly and in a very straightforward way.”
Prior to the hearing, a variety of civil society groups, including Access Now, Free Press and Fight for the Future, announced their collective support for the Fourth Amendment is Not For Sale Act.
Justin Hendrix is CEO and Editor of Tech Policy Press, a new nonprofit media venture concerned with the intersection of technology and democracy. Previously, he was Executive Director of NYC Media Lab. He spent over a decade at The Economist in roles including Vice President, Business Development & Innovation. He is an associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own.