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US Intelligence Agencies’ Purchase of Private American Data Faces Congressional Challenge
BLOG
Jul 6, 2023

A critical juncture has emerged within the United States House of Representatives as a “must-pass” defense bill goes through the legislative process. The bill presents an opportunity to amend government practices that involve procuring Americans’ private information, an act that the nation’s highest court has ruled necessitates a warrant for police intervention. Although it remains premature to gauge the amendment’s prospects amidst ensuing months of deliberation, it has garnered support from members of both the Republican and Democratic parties—a relatively rare occurrence.

 

The introduction of this amendment follows the declassification of a report by the Office of the Director of National Intelligence, the nation’s top intelligence agency. The report, unveiled last month, revealed that intelligence and law enforcement agencies have been acquiring data on American citizens, which their experts describe as “the same type” of information that the US Supreme Court sought to safeguard against warrantless searches and seizures in 2018. In a display of bipartisan collaboration, representatives Warren Davidson, a Republican from Ohio, and Sara Jacobs, a California Democrat, submitted the amendment late last week, advocating for stronger warrant requirements concerning the vast troves of surveillance data generated through individuals’ mobile phones. They contend that the government should refrain from bypassing the need for judicial authorization by resorting to financial transactions with data-holding entities.

Davidson affirms, “Warrantless mass surveillance infringes upon the Constitutionally protected right to privacy.” He emphasizes that the amendment primarily aims to prevent the government from circumventing the Fourth Amendment by acquiring “your location data, browsing history, or what you look at online.” A reviewed draft of the Davidson-Jacobs amendment by WIRED reveals that its bolstered warrant requirements are specifically targeted at individuals’ web browsing and internet search history, as well as GPS coordinates and other location information primarily derived from cellphones. Moreover, it encapsulates “Fourth Amendment-protected information”. It would prohibit law enforcement agencies at all levels from exchanging “anything of value” in exchange for data that would typically necessitate a “warrant, court order, or subpoena under law.”

The amendment contains a provision for anonymous information, which it deems “reasonably” immune to de-anonymization—a legal term of art that defers to a court’s analysis of a case’s fluid technicalities. A judge, for instance, might deem it unreasonable to assume that a dataset is adequately obscured based solely on a data broker’s assertion. The Federal Trade Commission’s Privacy and Identity Protection Division cautioned last year that claims of data anonymization are often deceptive, asserting that extensive research indicates the ease with which “anonymized data” can be reidentified.

The amendment was introduced to defense legislation on Friday, a bill that will ultimately authorize various policies and programs consuming a substantial portion of the Pentagon’s nearly $890 billion budget for the following year. The National Defense Authorization Act (NDAA), which Congress must pass annually, is typically an amalgamation of hundreds, if not thousands, of amendments.

 

This year’s negotiations have become especially contentious due to partisan divisions and internal strife, with only one in six NDAA amendments introduced thus far enjoying apparent bipartisan support. Republican members Nancy Mace of South Carolina, Kelly Armstrong of North Dakota, and Ben Cline of Virginia have expressed their endorsement of the Davidson-Jacobs amendment, as documented on the House Rules Committee website. They are joined by Democrats Pramila Jayapal of Washington, Zoe Lofgren of California, and Veronica Escobar of Texas.

Jacobs previously collaborated with Davidson on a related amendment to compel the US military to disclose its annual frequency of purchasing Americans’ smartphone and web-browsing data. However, this amendment was excluded from the final version of last year’s NDAA.