Privacy laws in this country are badly outdated, creating gaps that data brokers and government agencies can exploit. For instance, the Electronic Communications Privacy Act prohibits phone and internet companies from selling sensitive customer data to government agencies. But the law doesn’t address digital data brokers because they barely existed in 1986, when the law was passed. Companies that are barred from selling data to the government can thus sell to data brokers instead, and the brokers can sell the same data to the government—for a handsome profit. The data is effectively laundered through a middleman.
The Fourth Amendment Is Not For Sale Act (or similar legislation) should be incorporated into legislation reauthorizing Section 702. This bill would prohibit law enforcement and intelligence agencies from purchasing certain sensitive information from third-party sellers, including geolocation information, communications-related information that is protected under the Electronic Communications Privacy Act, and information obtained through illegitimate scraping practices. The bill contains exceptions for emergencies, and law enforcement and intelligence agencies would still be able to obtain the information using a warrant, court order, or subpoena, as provided by law.
The following two-page document highlights how numerous federal agencies have reportedly bought access to Fourth Amendment-protected data through the data broker loophole and refutes arguments commonly given in support of the data broker loophole.
BCJ Two-pager on Data Broker Amendment 2–13 by The Brennan Center for Justice on Scribd
