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Ranking Member Nadler Floor Statement on H.R. 4639, the "Fourth Amendment is Not for Sale Act"

Today, Ranking Member Jerrold Nadler (D-NY) delivered the following statement on the House Floor, as prepared, in support of H.R. 4639, the "Fourth Amendment is Not for Sale Act":

"Mr. Chairman, I rise in strong support of H.R. 4639, the “Fourth Amendment Is Not for Sale Act.”  I was proud to join Congressman Davidson in introducing this strong bipartisan legislation to help prevent government overreach by prohibiting the warrantless purchase of customer data.  When the Judiciary Committee considered this bill at markup last July, it received a rare unanimous 30-to-zero vote.

When we download applications to our phones, we do so because we think they will make our lives just a little better.  Weather apps tell us if we should bring an umbrella to work, delivery apps allow us to order groceries to our homes, and even employee work apps let us know the schedule for the week. 

Some of these convenience applications, however, can come with a dark side that they generally do not disclose to the American public: That the data they collect from us is immediately sold to the highest bidder. 

Third party purchasers of this data, often referred to as “data brokers” collect and package the data to sell to advertisers, market researchers, and governmental entities, to name only a few.  While many argue that the data they purchase from applications, websites, and social media is “de-identified” when it is sold, experts agree that just four points of data are needed to “reidentify” this data. 

Because of this, the purchaser of a data set can piece together significant information about us.  For example, they can track an individual’s commuting habits, including which businesses they drive by on their way to work, when they are not at home, and even when they visit places that are not part of their normal commute.

That anyone should have Americans’ private information is highly troubling to me.  But that our federal government can obtain it without a warrant should be troubling to all of us.  The Supreme Court in U.S. v. Jones unanimously found that the government’s use of a GPS tracker on the subject’s car is considered a “search” under the Fourth Amendment.  But in 2004, when the search in Jones occurred, not everyone had a phone in their pocket—the ecosystem of data brokers had not yet come to life. 

If the government wants to track a suspect today, they could go through the trouble of establishing probable cause and getting a warrant.  Or federal law enforcement could simply purchase data from a third party about the target of their operation.  If that purchased data included location data for their subject, they would have no need for checks and balances, no need for a warrant, and during an ensuing criminal trial, no obligation even to tell the court how they obtained the initial data in the first place.

We have the Fourth Amendment for a reason.  If law enforcement wants to gather information about you, they should first obtain a warrant.  They should have to go to a judge and explain why there is probable cause and why they need to know this information.  When federal law enforcement agencies purchase this data, however, they bypass our judicial system entirely.

Our current state of affairs is clearly not what our Founders intended.  Our right to privacy is being abrogated every day by those whose job it is to keep us safe.  The Fourth Amendment Is Not for Sale Act would change that. 

Under the bill before us today, the federal government would be prohibited from exchanging anything of value for data from third party vendors.  The law already prohibits applications and websites—electronic communications services and remote computing services—from sharing information with the government without a warrant. 

The Fourth Amendment Is Not For Sale Act would extend that same rule to the data brokers to which they sell.  This legislation would also ensure that the government does not circumvent these rules by prohibiting both “indirect” acquisition of information and agency sharing of third-party data.  This way, federal law enforcement could neither acquire prohibited data from individuals who purchase the data and then pass it on to the government, nor could they receive the desired data from non-law enforcement federal agencies.

I thank Congressman Davidson and Chairman Jordan for their leadership, and I thank my Democratic colleagues, Representatives Lofgren, Jayapal, and Jacobs for their hard work to get this bill to the floor.

I encourage my colleagues to vote “yes” on this legislation, and I reserve the balance of my time."

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