Bipartisan members of the House Judiciary Committee and hearing witnesses today agreed that Congress must take action to prevent law enforcement and intelligence agencies from purchasing Americans’ personal data.

In today’s digital age, every move we make online generates data that can be collected, shared, and sold. Data brokers manage these enormous troves of personal data – including cell phone location information – but a new loophole has allowed government agencies such as the FBI, the Drug Enforcement Administration, the Department of Defense, and as confirmed yesterday by the ACLU, the Department of Homeland Security, to purchase this data for their own use.

“Simply put, law enforcement and intelligence agencies are now able to obtain vast quantities of information that would otherwise be unavailable to them without a warrant,” committee Chairman Jerry Nadler, D-N.Y., said during today’s hearing. “Your physical location, your personal habits, your internet searches, your likes and dislikes, and your politics – to name just a few private concerns – are all available and accessible to the government.”

Elizabeth Goitein, senior director of the Liberty & National Security Program at the Brennan Center for Justice, explained that many app developers or digital data brokers are allowed to disclose customer’s personal data without a court order or subpoena simply because today’s technologies didn’t exist when The Electronic Communications Privacy Act of 1986 was approved by Congress.

The outdated law provides a loophole that allows the government to purchase personal information from a third party with no court oversight.

“The information is effectively laundered through a middleman,” Goitein said. “Many app developers can sell geolocation data directly to the government, although in practice they usually operate through data brokers as well.”

“We’ve seen this already, the Department of Defense purchased access to geolocation information from popular Muslim prayer and dating apps. Police departments used a data broker to track people who attended racial justice protests in Ferguson and Baltimore,” she added. “It’s time for Congress to step in.”

Goitein, along with other witnesses, voiced support for the bipartisan, bicameral Fourth Amendment is Not for Sale Act, which aims to close the legal loophole that allows data brokers to sell Americans’ personal data to the government without court oversight.

“The obscurity of the loophole the government is exploiting underscores how shaky its legal foundation is,” Former House Judiciary Chairman Bob Goodlatte said, who now serves as the senior policy advisor for the Project for Privacy and Surveillance Accountability. “The solution is, I suggest, the Fourth Amendment is Not for Sale Act.”

“This bill would close the loopholes in the law [and] would forbid government agencies from buying personal data, who would otherwise need a warrant or subpoena to obtain,” he continued. “When the Fourth Amendment is Not for Sale Act passes, U.S. law enforcement and intelligence agencies will still have powerful legal tools at their fingertips with which to follow leads that can catch terrorists, spies, and dangerous criminals. They will just have to follow the rules.”

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Grace Dille
Grace Dille
Grace Dille is MeriTalk's Assistant Managing Editor covering the intersection of government and technology.