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data brokers
Amid Spying Fight, House Passes Fourth Amendment Is Not For Sale Act
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," said one advocate.
Apr 17, 2024
While applauding the U.S. House of Representatives' bipartisan passage of a bill to ensure that "law enforcement and intelligence agencies can't do an end-run around the Constitution by buying information from data brokers" on Wednesday, privacy advocates highlighted that Congress is trying to extend and expand a long-abused government spying program.
The House voted 219-199 for Fourth Amendment Is Not For Sale Act (FANFSA), which won support from 96 Democrats and 123 Republicans, including the lead sponsor, Rep. Warren Davidson (R-Ohio). Named for the constitutional amendment that protects against unreasonable searches and seizures, H.R. 4639 would close what campaigners call the data broker loophole.
"The privacy violations that flow from law enforcement entities circumventing the Fourth Amendment undermine civil liberties, free expression, and our ability to control what happens to our data," said Free Press Action policy counsel Jenna Ruddock. "These impacts affect everyone who uses digital platforms that extract our personal information any time we open a browser or visit social media and other websites—even when we go to events like demonstrations and other places with our phones revealing our locations."
"We're grateful that the House passed these vital and popular protections," she added. "The bill would prevent flagrant abuses of our privacy by government authorities in league with unscrupulous third-party data brokers. Making this legislation into law with Senate passage too would be a decisive and long-overdue action against government misuse of this clandestine business sector that traffics in our personal data for profit."
Wednesday's vote followed the House sending the Reforming Intelligence and Securing America Act to the Senate. H.R. 7888 would reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for warrantless spying on noncitizens abroad but also sweeps up Americans' data.
The House notably included an amendment forcing a wide range of individuals and businesses to cooperate with government spying operations but rejected an amendment that would have added a warrant requirement to the bill, which the Senate could vote on as soon as Thursday.
Noting those decisions on the FISA reauthorization legislation, Ruddock stressed that "today's vote is a victory but follows a recent loss and ongoing threat as that Section 702 bill moves to the Senate this week too."
"As FANFSA and the 702 reauthorization move to the Senate, lawmakers in that chamber need to take a stand for the rights of people in the United States," she argued. "That means passing FANFSA and reforming Section 702 authority—and prioritizing everyone's First and Fourth Amendment rights."
Jeramie Scott, senior counsel and director of the Electronic Privacy Information Center's Project on Surveillance Oversight, also praised the House's FANFSA passage on Wednesday.
"The passage of the Fourth Amendment Is Not For Sale underscores the extent to which reining in abusive warrantless surveillance is a bipartisan issue," Scott said. "We urge the Senate to take up this measure and close the data broker loophole."
Kia Hamadanchy, senior policy counsel at ACLU, similarly said Wednesday that "the bipartisan passage of this bill is a flashing warning sign to the government that if it wants our data, it must get a warrant."
Hamadanchy added that "we hope this vote puts a fire under the Senate to protect their constituents and rein in the government's warrantless surveillance of Americans, once and for all."
Sen. Ron Wyden (D-Ore.), a critic of the pending 702 bill and FANFSA's lead sponsor in the upper chamber, called the the House's Wednesday vote "a huge win for privacy" and said that "now it's time for the Senate to follow suit."
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Tracking of Planned Parenthood Visits 'Should Terrify Every Single American'
Sen. Ron Wyden warns that "if a data broker could track Americans' cellphones to help extremists" send ads to clinic visitors, "a right-wing prosecutor could use that same information to put women in jail."
Feb 14, 2024
U.S. Sen. Ron Wyden and privacy rights advocates this week are sounding the alarm about an anti-abortion group using cellphone location data to send misinformation to people who visited hundreds of Planned Parenthood clinics across the country.
"If a data broker could track Americans' cellphones to help extremists target misinformation to people at hundreds of Planned Parenthood locations across the United States, a right-wing prosecutor could use that same information to put women in jail," Wyden (D-Ore.) said in a statement Tuesday.
"Federal watchdogs should hold the data broker accountable for abusing Americans' private information," he added. "And Congress needs to step up as soon as possible to ensure extremist politicians can't buy this kind of sensitive data without a warrant."
"That data brokers can track people visiting Planned Parenthood is terrifying enough. That law enforcement agencies can simply buy this type of sensitive data—rather than getting a warrant—is even worse."
Since the right-wing U.S. Supreme Court reversedRoe v. Wade with its June 2022 decision in Dobbs v. Jackson Women's Health Organization, anti-choice state policymakers have ramped up attacks on abortion rights, elevating concerns about patient privacy.
Wyden explained in a Tuesday letter that his office launched an investigation after The Wall Street Journalreported last May that the Veritas Society, a nonprofit established by Wisconsin Right to Life, hired the advertising agency Recrue Media for an anti-abortion ad campaign targeting clinic visitors, whose locations were tracked by the data broker Near Intelligence.
As Wyden wrote to Federal Trade Commission (FTC) Chair Lina Khan and U.S. Securities and Exchange Commission (SEC) Chair Gary Gensler:
My staff spoke with Steven Bogue, the co-founder and managing principal of Recrue Media on May 19, 2023, who revealed that to target these ads, his employees used Near's website to draw a line around the building and parking lot of each targeted facility. On May 26, 2023, my staff spoke with Near's chief privacy officer, Jay Angelo, who confirmed that, until the summer of 2022, the company did not have any technical controls in place to prevent its customers targeting people who visited sensitive facilities, such as reproductive health clinics.
On a webpage that has since been taken down, but was saved by the Internet Archive, the Veritas Society stated that in 2020 in Wisconsin alone, it delivered 14.3 million ads to people who visited abortion clinics, and "served ads to those devices across the women's social pages, Facebook, Instagram, and Snapchat." The scale of this invasive surveillance-enabled ad campaign remains unknown, however, Mr. Bogue told my staff that the company used Near to target ads to people who had visited 600 Planned Parenthood locations in the lower 48 states.
Justin Sherman, who studies data brokers at Duke University, toldPolitico that "this is the largest targeting campaign we've seen to date against reproductive health clinics based on brokered data."
Wyden also highlighted Journalreporting from October about Near selling location data to defense contractors that resold it to U.S. Defense Department and intelligence agencies. He wrote that Angelo, the privacy officer, "confirmed that the company had for three years sold location data to the defense contractor AELIUS Exploitation Technologies."
"Mr. Angelo revealed that after joining Near in June of 2022, he conducted a review of the company's practices and discovered that the company was facilitating the sale of location data to the U.S. government that had been obtained without user consent," the senator continued, noting the removal of "misleading statements" from Near's website.
"The former executives that led Near during the period in which it engaged in these egregious violations of Americans' privacy are now under criminal investigation, according to a statement made by the company's lawyer during a December 11, 2023, bankruptcy hearing. But prosecuting those individuals for engaging in financial fraud will not address Near's corporate abuses," Wyden argued, urging the FTC and SEC to take various actions over the company's "outrageous conduct" that "recklessly harmed the public and investors."
Wyden's letter comes as the Republican-controlled U.S. House plans to take up the Reforming Intelligence and Securing America Act, which would reform Section 702 of the Foreign Intelligence Surveillance Act (FISA), spying powers temporarily extended late last year that agencies—especially the Federal Bureau of Investigation (FBI)—have abused.
Section 702 only allows warrantless surveillance targeting foreigners located outside the United States, but Americans' data is also swept up, and privacy advocates within and outside of Congress—including Wyden—have long been pushing for warrant protections, a key issue in this week's debates about the Republican-led reform bill.
Responding to Wyden's letter, Rep. Zoe Lofgren (D-Calif.) said Wednesday that "this is outrageous. Americans' most personal private health data is being bought and sold for politics. Major surveillance changes are needed. i.e. If Congress acts, reforms from our Fourth Amendment Is Not For Sale Act must be part of a FISA reform."
Reintroduced by Lofgren, Wyden, and a bipartisan coalition of lawmakers last July, that bill would require the U.S. government to get a court order compelling data brokers to disclose information as well as bar law enforcement and intelligence agencies from buying data on people in the U.S. and Americans abroad if it was obtained from a user's account or device, or deceptive practices.
Privacy rights campaigners and experts also responded to Wyden's letter with renewed calls for closing the
data broker loophole.
"That data brokers can track people visiting Planned Parenthood is terrifying enough. That law enforcement agencies can simply buy this type of sensitive data—rather than getting a warrant—is even worse,"
said Ashley Gorski, senior staff attorney at the ACLU's National Security Project. "This Thursday, Congress must vote to close the loophole for law enforcement purchases from data brokers. The government shouldn't be able to buy its way around the Fourth Amendment."
The organizations
Demand Progress and EPIC concurred in social media posts sharing Politico's reporting on the letter.
"The continued sale of our most sensitive information to and by shady data brokers not only fuels harmful surveillance advertising systems, but enables government agencies—from local police departments to state attorneys general to the FBI—to sidestep the Fourth Amendment,"
said EPIC counsel Sara Geoghegan in a statement. "We urgently need to rein in data brokers and enact comprehensive privacy rules to protect us from these grave harms in the post-Roe era we live in."
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