The Fourth Amendment broadly protects Americans’ personal information against government surveillance. But, in recent years, agencies ranging from the Internal Revenue Service to the Federal Bureau of Investigation have devised a scheme to circumvent those protections. Instead of seeking probable-cause warrants, as the Constitution requires, they argue that they are free to purchase private data from commercial brokers. Since the statutes governing the dissemination of Americans’ personal materials predate mobile apps and commercial brokers, this blatant evasion of core constitutional principles is not expressly prohibited in federal law. The government has leveraged this loophole to buy up data that emanates from gaming apps and prayer apps, exposing many Americans — and disproportionately communities of color — to backdoor surveillance.
The public, however, remains largely unaware of the government’s end run around the Constitution. Hearings in Congress would shed light on the threat to privacy rights posed by the government’s actions and spur momentum for the passage of the corrective Fourth Amendment Is Not For Sale Act (S.1265/H.R. 2738). The Brennan Center thus urges the House Judiciary Committee and Senate Judiciary Committee to hold hearings on the bill in early 2022.