New Tests for the Fourth Amendment
2021-06-14 · Guest: Liza Goitein (Brennan Center for Justice) · 52:18
Government data purchases and the Fourth Amendment
Bob Zadek and Liza Goitein discuss the evolution of the Fourth Amendment in the digital age, focusing on how the government bypasses warrant requirements by purchasing personal data from brokers. They explore the history of surveillance from the Cold War to post-9/11 policies and the chilling effect that mass data collection has on democratic participation and free speech.
Topics: Fourth Amendment, Privacy, Surveillance, Data Brokers, Brennan Center for Justice, Katz v. United States, Carpenter v. United States, Fourth Amendment Is Not For Sale Act, Individualized Suspicion
Speakers:
- Bob Zadek — Host
- Liza Goitein — Senior Director, Liberty and National Security Program at the Brennan Center for Justice
Introduction to the Fourth Amendment and Digital Privacy [00:17]
Bob Zadek: Good morning, everyone. Welcome to The Bob Zadek Show, the longest-running live libertarian talk radio show on all of radio. The show this Sunday and always, the show of ideas, never once the show of attitude. Thank you so much for listening to us this Sunday morning.
It is always such a treat for me when I read a blog or an article or some smart person sharing their thoughts publicly, when I read the article or the blog or listen to the podcast and I say to myself, perhaps even out loud, “My goodness, I never thought of that.” When I get to say, “I never thought of that,” or its corollary, “I didn’t know that,” that’s a good day in the office. And when I read the article which we will be discussing this morning, I said both: “I never thought of that” and “I didn’t know that.” And I thought to myself, if I didn’t know that, there is at least a possibility that you, my listeners, didn’t know that.
Well, that changed for me when I read the article. That’ll change for you when you listen to my interview this morning with this morning’s guest. Liza Goitein has written an article entitled “The Government Can’t Seize Your Digital Data—Except by Buying It.” By buying it? An end run around the Fourth Amendment? Is that what’s going on? Well, yes, my friends, I’m afraid that that is what’s going on.
And we are going to be discussing this morning a cherished right that all citizens and non-citizens in our country enjoy, reinforced by the Fourth Amendment to the Constitution in the Bill of Rights. It is, in general, the right to privacy, but much more specifically, it is the right to be secure in your home, in your person, and in your property from unreasonable searches and seizures by the government. Specifically, I’d like to start the show just with sharing with you the very few syllables that are the important part of the Fourth Amendment to the Constitution: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
And it goes on to explain that the only way the government can intrude into your right to privacy, into your right to be secure, is by a court order, by an impartial judge allowing it, and even that upon oath or affirmation by some government official that this is necessary for the administration of justice. So that’s the starting point: the Fourth Amendment, the right to be secure in our—and these words are important—persons, houses, papers, and effects. Four kind of ordinary words: persons, houses, papers, and effects. We will do a deep dive this morning into what those four nouns actually mean, because that dictates where you can tell the government “butt out, it’s none of your business,” and the government has to obey your command for them to butt out unless a judge finds otherwise. This is a cherished right. Our country and our Constitution protects this right to privacy, this right to be left alone, more so than probably any other Western democracy—in fact, democracy anywhere in the world. We do it the best, or at least we try to. But we don’t do it perfectly.
And to help us understand how the advent of modern technology has compromised this right, has raised very difficult questions for the courts to sort out, I’m happy to welcome to the show Liza Goitein. Liza is with the Brennan Center for Justice, Liberty and National Security. She writes extensively on this subject. She has served on the Hill. She was counsel to former Senator Russ Feingold, a special senator in my opinion. He had a career in the Senate, I believe he’s from Wisconsin if I’m not mistaken. And she served under him. She’s a graduate of Yale Law School and has also clerked for Judge Michael Daly Hawkins in the Ninth Circuit Court of Appeals. Liza will help us understand the intersection between data, big data, new data, complex data, and the Fourth Amendment. Liza, welcome to the show this morning.
Liza Goitein: Thanks very much. It’s my pleasure to be here.
The Evolution of Privacy Law: From Papers to Telephones [04:00]
Bob Zadek: Now, Liza, we wouldn’t, were it not for the accumulation of data through big tech and all that every one of our listeners is generally aware of, which is the collection and the commodification and the sale of data as its own commodity. Data, information about us, is a valuable commodity to be bought and sold in the marketplace, and probably there’s nothing wrong with that. We might discuss that during this morning’s show. But the same data in the hands of the government is kind of a different deal. So help us set the stage, if you will. Tell us the story of data collection and the Fourth Amendment, and start with what you and I will refer to, perhaps, as maybe the good old days, because it hasn’t been that far in the past that the world was a far different place in terms of government spying on us. So tell us the story, if you will, of the growth of big data and the growth of governmental spying as a result.
Liza Goitein: Well, that’s a long story and there are a lot of different pieces to it. So let me just start with what you started with, which is the four things that the Fourth Amendment protects. It protects our persons, our houses, our papers, and our effects. And back when the Fourth Amendment was passed, that was pretty much the universe of what you could have that the government could look at that would violate your privacy.
And a lot of what the Fourth Amendment was designed to do—and this is a sort of interesting fact about the Fourth Amendment that not everybody knows—is to protect the First Amendment. It was essentially to protect people’s ability to freely hold the beliefs that they had, including dissenting beliefs, beliefs that were in opposition to the government, without the threat that the government was going to break into their house and look at their papers and in some way harass or persecute them because of their political beliefs. And those were the things you worried about: your houses, your papers, that kind of thing.
What happened as the universe of information about people and how that information gets out into the world, how that information can be acquired and processed and used by the government—as that evolved just dramatically starting in the last century, it really took the courts a very long time to catch up and to say, “Okay, that may not be technically a paper or an effect”—I guess “effect” is kind of hard to define—“but it is something that gets at the heart of why we have the Fourth Amendment and it needs to be protected.”
And the most obvious example is telephone calls, your electronic communications. Obviously, there were no electronic communications in the 18th century. So in—and electronic communications weren’t your house, they weren’t your property, and there was a property-based conception of the Fourth Amendment right up until 1967. And so the Supreme Court, when it first looked at government surveillance of electronic communications—phone calls—in 1928, the Court said, “No, the Fourth Amendment doesn’t apply to that. It’s not an intrusion into your house. It’s not an intrusion into your property for the government to put a wiretap on a phone line and pick up your communication.” And it wasn’t until 40 years later that the Supreme Court said, “Oh no, wait a minute. Yes, that violates a reasonable expectation of privacy. And if it violates a reasonable expectation of privacy, then the Fourth Amendment is implicated.”
The Reasonable Expectation of Privacy Test [06:22]
Bob Zadek: Now, Liz, I just want to interrupt for one second because you said a phrase that I suspect you and I will use throughout the hour, and I want to make sure our listeners appreciate the importance of the phrase “reasonable expectation of privacy.” The courts, I think, will ask themselves whether the average citizen—and I say “citizen” even though non-citizens are protected, but the average American, if you will—reasonably expects that the government not have access to certain information; it is private. And the Supreme Court—and this is a moving target, the “reasonable expectation of privacy” collectively, what is reasonable—well, that’s like an average. What would the average person expect? And that’s a moving target that requires the courts to figure out what is this theoretical reasonable expectation of privacy and what is not. So that’s a lynchpin that courts rely upon and you and I may refer to it throughout this conversation. That’s an important lynchpin that brings us back to earth and helps us analyze these issues under that test. I just wanted to be sure the audience appreciates that.
And also, for the rest of time, it is a fair prediction that technology will always outpace the law. The law is always catching up, will never catch up. It cannot. The law simply has to adjust and a lot of what Liz is talking about is going to be the attempt by the courts and the legislature to catch up with technology and to apply principles and the words that may have made sense in 1787 and 1786 but are difficult to apply to today’s technology. Sorry, Liz, I just wanted to remind our audience about that.
Liza Goitein: Yeah, no, that’s a great point. And I think one of the issues is sort of a combination of two things you just said: with the reasonable expectation of privacy, and then you add on to that the lag time that it takes for the courts to resolve these issues. The problem there—and I’ll just put my cards on the table and say the reasonable expectation of privacy test is a very problematic test because what does that mean? And it becomes very subjective in the minds of the judge.
But part of the problem is that to the extent you are looking at the public and what the average person in the public expects, if the court starts looking at the case 10 years after the government has started collecting this data in bulk, or whatever the data may be, and there has been 10 years of this common practice of your data being available to the government, at that point, nobody expects that data to be private anymore because for 10 years it hasn’t been private. And so at that point, the court is more likely to say, “Well, you don’t have a reasonable expectation of privacy because this stuff is used by the government all the time.” Well, that is just circular and it’s a result of this problematic lag time with the courts.
Now, Congress should be able to move quicker. Congress should be able to do a lot of things. So, you know, Congress really should be acting more quickly than the courts to respond to these challenges. Congress can implement a standard that’s different, at least that’s higher than reasonable expectation of privacy. We all know what some of the problems there are. But in order to stop playing catch-up all of the time, really what needs to happen is for Congress to enact legislation that has basic principles in it, and these need to be principles that can withstand changes in technology. We can’t just have a whole piecemeal system with every individual technology being addressed by a different law. That’s not the answer. We need to come up with some better overall safeguards for statutory safeguards by Congress for Americans’ privacy.
The Chilling Effect of Government Surveillance [09:01]
Bob Zadek: Now, Liz, you made a very important point a few seconds ago, and once again I want to restate your point and I invite our listeners not to lose track of that point because it drives so much of what we’re going to be discussing this morning. And that is, I’d like to distinguish the collection of data by the government, which you and I can discuss if we wish, and whether mere collection is itself somehow harmful to the democratic process, or—and this is the point you made, Liz, which is really important—it’s not the collection per se, it’s the effect upon behavior that we are concerned about.
To the extent that the collection and possible misuse of the data, if that has a chilling effect upon what we think, what we say, and how we express an opinion and what our conscience is, that is the death of democracy. The mere collection, if all it was was collection, like collecting coins and collecting artwork, if it was merely the collection and nothing more, we wouldn’t be having the conversation. If the government was in the hobby of collecting buying habits, who cares? It is the chilling effect. And I ask our audience to please bear that in mind. I don’t care if the government knows what I purchase on Amazon, except to the extent that I fear that the government might misuse that data and therefore I might not make the very same honest, legitimate purchase, which means the government’s use of data has a chilling effect upon my lawful behavior. It is the latter that I think is very important because democracy hangs in the balance, not the mere collection. Liz, any thoughts on that, or can we just accept that and go on?
Liza Goitein: Yeah, well, of course, if the government collected your data and literally never looked at it, just put it in a box and then threw it away after a few years and had no plans to do anything with it, we wouldn’t have any concerns. Nobody collects anything to never look at it or never do anything with it, and that includes stamp collections or anything else. Obviously, the government has stuff it wants to do with the data.
But unfortunately, some of those things that it wants to do with the data might be legitimate things that we want the government to be able to do when it comes to law enforcement or something like that. But unfortunately, if you take the position that the government can kind of collect everything and that’s not a problem and then we’ll just put in protections on the back end as for what the government can actually do with it, those don’t work. We have seen it a million times in a million different ways that when you let the government collect everything and then you say, “But you can’t look at it unless you meet this and this and this standard, and then you can only look at it for this purpose,” it doesn’t matter. They just look at it and they use it for how they want to use it. And I mean, there are more case examples of that than I can count.
And so you have to worry about collection. And you have to worry about collection because it is the collecting of all of this data that enables abuse, that enables misuse, that enables other harms like hackers. I mean, when you have these massive government databases of sensitive information just sitting there, they’re vulnerable. They’re vulnerable to being hacked by all kinds of nefarious actors who can then get that information and use it.
And then as you said, even if the government never did anything wrong, the mere act of collection and the potential for that very sensitive information about you to be used in a way that it shouldn’t be used has a chilling effect. And we have really seen this. I mean, we’ve measured this. After Edward Snowden revealed in 2013 the NSA’s spying activities, Americans’ search habits on Google and on search engines changed measurably. And it was studied and shown that there was a measurable drop in the use of search terms that were considered sort of government-sensitive. So people Googling “CIA,” for example, or people Googling things—there were not similar changes in things like abortion or that kind of thing. So it was clear that people were worried that they were going to trigger some kind of surveillance through these sorts of government search terms.
And we’ve seen it in other ways too. We saw that when the NYPD was infiltrating mosques and Muslim student organizations and that came out, there was a drop in participation, there was a drop in attendance at mosques. I mean, some tragic outcomes because people were worried about what might happen. So that chilling effect you’re talking about, it’s not hypothetical. It’s real. It’s been measured. And so we have to worry about collection because that’s what enables all of the problems, that’s what causes the chilling effect.
Post-9/11 Surveillance and the Shift in Legal Standards [14:40]
Bob Zadek: You have highlighted 9/11, the events on 9/11, as a bit of a game changer—not profoundly, but certainly things pre-9/11 and post-9/11 from the data collection and data use standpoint of the government changed dramatically. And outline for us those changes, not because the changes themselves mean a lot, but it shows how the government policy, how strong government policy can be and the powers government can find under the cover of an existential threat. So tell us the story just so we can understand briefly the pre- and post-9/11 world from a privacy standpoint.
Liza Goitein: Sure. And I would say that the changes after 9/11 were profound. I think they were incredibly consequential and these were changes in the law. But in order to put them in context, I actually have to go back further than sort of immediate pre-9/11 and I have to talk about the early decades of the Cold War when government spying domestically on law-abiding American citizens was rampant.
At the time, there were very few legal limits on surveillance, on government surveillance, particularly in the national security space. And the NSA, the FBI, the CIA—the NSA is the National Security Agency and it’s actually a part of the Department of Defense. It should have no business spying on Americans. It should be focused outward as part of the Defense Department. But the NSA, the CIA, also with no legitimate domestic role, and the FBI were all spying on anti-war protesters during Vietnam. They were spying on social justice movements, racial justice movements, most notoriously, I suppose, the FBI spied on Martin Luther King Jr. and tried to discredit him with private information that the FBI found. Essentially, it was a free-for-all of spying on people based on their political, ideological, racial characteristics.
So this all came out in the 1970s. And when it came out, it came out through an investigation by a special committee in the Senate, the Church Committee. And when it came out, the response from Congress and from government agencies was to implement a whole range of new laws and policies to restrain government spying domestically. And the principle that you saw in all of these laws and policies was the same, and it was the principle that law enforcement and intelligence agencies could not collect personal information about Americans unless they had some level of individualized, fact-based suspicion of wrongdoing. So they had to have some factual reason to believe that that person was involved in some kind of criminal or other bad activity.
And that was the standard for 30 years, something like that, 25 years. And it wasn’t, you know, it didn’t work perfectly, but it helped a lot in terms of limiting some of the abuses that had been happening in the decades previous. Then came 9/11. And what happened after 9/11 is that Congress and government agencies moved as quickly as they could to relax all of the limitations that had been put into the laws and policies and to make it easier for the government to collect information about Americans without any individualized, fact-based suspicion of wrongdoing. In some cases, the government was able to collect information without any reason to suspect wrongdoing.
And I just want to point out that this was not responsive to 9/11 in the sense that the 9/11 Commission found fault with a lot of things that the US government did leading up to 9/11. It never said, “We need to be able to collect more information about Americans with less reason to suspect them.” That was not a recommendation. It wasn’t needed. It hasn’t helped. All it’s done is to create this incredible deluge of information that, if anything, has just made it harder for the government to sort of pick out the actual threats from the noise of all the irrelevant data. So that is the story of 9/11 and how it changed the law really in almost any relevant law you can think of or policy you can think of was changed after 9/11.
The Loophole: Buying Data Instead of Seizing It [18:14]
Bob Zadek: I’m so glad that you emphasized by changing your tone “individualized” as opposed to, “Well, this person is a Muslim and until we can sort out which are the bad Muslims, if any, we have to collect data on all of them.” Well, no you don’t, because the Fourth Amendment makes it clear it has to be specific. The sworn affirmation mentioned in the Fourth Amendment is about this person. And obviously, the mass collection of data is mass collection of data; it’s not individualized. So that writes part of the Fourth Amendment out of the Constitution. And I’m so delighted—I just wanted the audience not to miss your appropriate emphasis on “individualized,” because if you want to know like in total, in one sentence, what’s wrong with that collection of data, it’s ignoring the concept of individualized, because the group is a lot of individuals.
Liza Goitein: Can I just give you the best example of that, of how a change in the law removed the individualized component and what happened after that? And that is the National Security Agency’s bulk collection of Americans’ telephone records. So before 9/11, if the government wanted to get Americans’ telephone records under the Foreign Intelligence Surveillance law, which is what it was using, it had to show to a court that the person that it wanted to collect information about was a foreign agent or an agent of a foreign power. And under the definitions in the law, if you’re an American and you’re an agent of a foreign power under this law, it basically means you’re committing a crime. It basically means you’re conducting espionage. And so they had to show that to the court. They didn’t have to show probable cause, but they had to show that they had reasonable grounds to believe that you were doing these bad things specifically individually.
After 9/11, that standard was changed. And so all the government had to show was that the information was somehow relevant to an investigation that it was doing. So it was just a standard of relevance, which doesn’t necessarily mean that the subject of those records themselves is suspected of anything. Under this relevance standard, the government decided that Americans’ phone records—and these are records of who you call, when you call them, how long you speak to them—that these phone records were relevant to counterterrorism investigations broadly, that all of these counterterrorism investigations would benefit by collecting all Americans’ telephone records indiscriminately. So just what they called bulk collection without any sort of attempt to differentiate between who was being collected on. They were just pulled in, just vacuumed in.
And the theory was that even though the vast majority of these records were not, in fact, going to be relevant to any counterterrorism investigation, they could still say that the entire pool was relevant because there would probably be some relevant records buried within them. And that the only way to find the relevant records was to collect all of the irrelevant ones. And based on that interpretation of relevance, the NSA started its bulk collection of Americans’ phone records. Now, that program has ended. It stopped. Congress ended it. And we’ve had a lot of studies of that program. Guess how useful it was? It wasn’t useful at all. I mean, predictably, that is not how you find terrorists, by just collecting everything and kind of hoping that something’s going to stand out. And so over the course of time that this program existed, it had extremely little, scant counterterrorism benefit, while at the same time collecting billions of law-abiding Americans’ records. Just an incredible intrusion into our collective privacy. So I think that’s in some ways the best example of that phenomenon we were just talking about.
The Fourth Amendment Is Not For Sale Act [20:51]
Bob Zadek: And every American has to say to oneself, it just feels wrong for the government to be collecting data about you just in case or on the basis of almost no standard. It just intuitively, it’s in our DNA that that has to be violative of the Fourth Amendment. And so now we have the backdrop of the government trying to use its powers to collect data and Congress attempting to impose some limitations on that power. And then you point out we get to the article which you wrote which brought this all to my attention, which is “The Government Can’t Seize Your Digital Data—Except by Buying It.” Now, you equate in that article—and we’ll get to this—that whether seizure and buying it are equally bad. We may discuss that during this hour. But tell us what prompted you to write the article and why you felt it was important to call this specific transaction to the attention of your readers.
Liza Goitein: Yeah, I wrote the article because over the last year there has been several investigative reports that found out that government agencies, lots of them—the IRS, the FBI, the Department of Homeland Security, the Drug Enforcement Administration, the Department of Defense even—had been buying these databases of location information, cell phone location information essentially, that included Americans’ information so that they could use them for whatever purposes. We don’t even know because all of this had been done very, very secretly and was just only exposed by investigative reporting.
The government should not have been able to do this, if you ask me, for two reasons. The first reason is that in 2018, as I mentioned before, the Supreme Court held that this kind of information, your location information, is so sensitive that the government should need to get a warrant in order to compel a company that holds that information to give it to the government. So any company that holds that information, in order for the government to get it, the government should have to get a warrant. That’s what the Supreme Court said in 2018.
At the same time, long before that, dating back to 1986, the Congress had passed a law that said that telephone companies and certain other providers of communications services and computing services cannot voluntarily give customer information to government agencies with a few exceptions. So for both of those reasons, it seems that legally the government should not be able to get this very sensitive data.
When it comes to the law that Congress passed, though, because that was passed back in the ’80s and hasn’t really been meaningfully updated since then, even though it would prevent a phone company from selling that information to the government, it doesn’t apply to most of the apps that exist today because they don’t qualify under the definitions in the statute. It doesn’t apply to digital data brokers that the phone company can sell the data to and then the digital data broker can just turn around and sell it to the government. So they can basically just launder this data through a middleman. And that’s because this law is so old that nobody was thinking about digital data brokers or app developers and so they’re just not covered. So there’s this huge loophole in the law.
Now, you might say, “Okay, but still, the Supreme Court has said that the government needs a warrant. So how can they get away with this? How can they get this even from the data broker? How can they get this information without a warrant?” And the answer is that the government has taken the position that the Supreme Court’s ruling only applies when the government forces a company to turn over the data. But as long as the company’s willing to sell it to the government, then the government doesn’t need to get a warrant. Which, if you ask me, is an extremely dubious and self-serving reading of the Supreme Court’s opinion. But again, it’ll take years for the Supreme Court to get back to this, if it does, and to rule on this. And in the meantime, unless Congress acts, unless we see state legislatures acting, this practice will continue. And so we’re talking about huge databases of information that the Supreme Court has said the government should have to have a warrant to get, and instead of a warrant, the government’s just throwing cash at the problem.
Bob Zadek: Here’s—I’m going to ask what will seem like a really annoying “Bob is missing the point” kind of question. I’m not doing it to be annoying or to appear like I’m missing the question. I’m doing so only to drill down on the analysis as to why it shouldn’t be, in your opinion—and I tend to agree—it shouldn’t be that the government can buy data which will intrude upon people’s privacy. I’m going to make an absurd analogy. Liza, you and I are lawyers and we often argue and reason by analogy, and that’s what I’m going to be doing. And please forgive the banality of my analogy. Should the government be prohibited from buying binoculars because they might use those binoculars improperly to spy without a warrant upon individuals? So tell me why it’s okay for the government to buy binoculars which it might misuse or not, but it’s not okay for the government to buy data which it might misuse or not.
Liza Goitein: Well, the Supreme Court has not said that a warrant is required in order to misuse data, right? To misuse your personal location information. The Supreme Court has said this information is so private that the government needs a warrant just to collect it, right? Just to get that data. So it’s a privacy intrusion for the government to collect this information without a warrant. Right? So it’s not a question of could the government use this information in a way that would be proper. The warrant requirement—nobody says the government doesn’t need a warrant to go into your house as long as once they go into your house and search around, they only seize something that looks like an evidence of a crime and they only use it to prosecute you in court. That’s not the point. The point is they need a warrant to go in the door. Right? So whether the government’s going to use this data correctly or misuse it really isn’t the point. They are buying their way around the warrant requirement that applies just to get the data.
And so in that sense, I think the analogy kind of breaks down. Also, with the binoculars, I sort of get the sense that—well, let’s just talk about what you can see with binoculars. I suppose you could look into somebody’s house with binoculars, but if they’ve left their window open, then that’s not considered a Fourth Amendment issue. You can do that. The police can use the binoculars outside to look closer at somebody who’s outside. Again, not a huge intrusion on what we might think of as a reasonable expectation of privacy, acknowledging the problems with that standard.
What we’re talking about with this geolocation information, just again to explain what this is, this is a comprehensive record of everywhere you have been, day in, day out, stretching back months, potentially years. This is a historical and ongoing record of your precise whereabouts that can be used to determine some of the most sensitive possible information about you. And the government should need a warrant to collect it and it shouldn’t be able to just buy its way around that requirement.
Bob Zadek: I couldn’t agree more with the principle, so I’m all in on the thesis of your article. What I found myself thinking about, sort of in a parallel line of thought, is what’s going on today with the so-called cancel culture where information, the same kind of data, data that’s publicly available if you drill down, whether you have to buy it or you can just find it, but how the cancel culture crowd—sorry for the alliteration—the cancel culture crowd will misuse, in a way, publicly available data to profoundly harm the victims. And they do that by finding this data, embarrassing thing, conclusions one can draw about geolocation of where you are. You know the kind of information. And I find the damage, while of course it’s different—government carries guns and they can take away our liberty and take away our life. Government is different, no question about that. Putting that obvious concept aside, I would take your concern and I would say, “My goodness, the private sector also misuses data which has the same chilling effect.” If you’re a college student now and you’re ambitious and you are planning on being in public life, in politics, whatever, you now as a youngster would think twice, perhaps if you’re mature enough, as to what you put in social media for fear that it’ll come back to haunt you in later life. So I agree with you, the chilling effect that by government doing it, it’s a chilling effect. And if you want to see the chilling effect, just look at what’s happening in the private sector and multiply that by some factor and that’s what government could do with the data.
Liza Goitein: So, okay, let me just jump in. I think you’re kind of conflating a couple of very different things. You do have a point in there for sure and I want to get to that, but first let me just separate out those things, which is the issue of what you put on social media and then what could happen in terms of cancel culture or whatever you want to call it. That’s different because what you put on social media, you put on social media completely voluntarily to make it public, in general. And that is not the case with your—you don’t deliberately make public your location information where you are all day every day over the course of months. So it’s different in that respect.
And it’s also different because the people who are engaged in what you refer to as cancel culture are not people who are going to be buying massive—I mean, this information, the cell phone location information, is sold in these huge databases to wealthy buyers who then have the technology to run the algorithms to figure out what it is they’re trying to figure out. And some of this—this is where we do get to your point. Right? So that is not going to be people who are going to engage in a campaign of trying to cancel somebody who said something that people don’t like on social media. That’s a whole different thing.
But if you’re talking about the fact that digital data brokers, app developers can also sell your data to marketers, can also sell your data to private entities that do have the wherewithal to purchase these databases and use them, right? I don’t think that causes a chilling effect. It doesn’t seem to cause a chilling effect, the fact that marketers and private entities have access to this data. But I do think it’s very, very problematic. And I do think that we need stronger legal protections against sales or disclosures to private entities as well as vis-à-vis the government. I don’t think that app developers should freely be able to sell your geolocation information to data brokers at all. I think there should be restrictions on that as well.
Having said that, I don’t think that the analogy is directly comparable between your data being sold to marketers and your data being sold to the government. Because marketers who are targeting you, they want to sell you things, right? That’s annoying, but they want to sell you things. They want to make money off of you. The government has the power to put you in jail. The government has the power to launch a drone strike against you, honestly, even if you are an American citizen. If you’re overseas, our government claims the power to gather what information however it’s going to gather it and use it to engage in targeted killing if they think they’ve met whatever internal standard they have. I mean, the government has these tremendous coercive powers over the individual that the private sector does not have. And the government also has the incentive and the ability to target, harass, persecute someone based on their ideology in a way that the private sector—the private sector’s trying to make money, right? That’s what they’re trying to do. It doesn’t help them to make money to persecute people based on their politics or their race. So the harms that can come from government access to this kind of information are different in kind than the harms that we worry about from disclosure to the private sector. But that is not to say—I want to help Americans have better privacy rights vis-à-vis the private sector as well as vis-à-vis the government. I think that’s really important.
The Fourth Amendment Is Not For Sale Act [20:51]
Bob Zadek: In your article, you aspire to legislation that would help alleviate, eliminate, diminish this problem. Tell us what your ideal legislation would be like. You mentioned in your piece that there is some legislation being sponsored, I think Rand Paul and probably Wyden—I think Ron Wyden. Tell us what the pending legislation is and in what ways it doesn’t go far enough. And the reason I want to do that is not because we are in conference now rewriting draft legislation, but in your analysis in what’s wrong with it, our listeners will understand the problem a bit better. So tell us what the pending legislation is and what’s wrong with it and what’s right with it.
Liza Goitein: Yeah, okay. So the legislation is called the Fourth Amendment Is Not For Sale Act. And it would prohibit government agencies—and I should be more specific, it would prohibit law enforcement and intelligence agencies, so not public health agencies, for example, or not education agencies, but law enforcement and intelligence agencies from purchasing or essentially exchanging for anything of value, which is essentially purchasing, this type of information that we’re talking about. So it would include geolocation information, it would certainly include communications content, it would include many of the things—it would include all of the things that currently under statutory law telephone companies are not allowed to sell to the government, as I was mentioning before. So those things would be off the table for the government to purchase, for intelligence and law enforcement agencies to purchase from any company that holds that data.
And that’s how it gets at the problem. Now, I think that is a really good start. It captures a lot of the issues we have. I did mention that it allows public health agencies and other agencies to collect the data, but it prohibits those agencies from sharing the data with law enforcement and intelligence agencies. And those are the agencies that we’re really concerned about how they might misuse the data.
And what ways doesn’t it go far enough? Yeah, so one thing that I think it could do better is that it doesn’t prohibit voluntary disclosures without payment of this data to the government. And I think the reason it doesn’t is because the whole idea is that, well, the business model is to sell this information, that’s what we’re worried about, that’s what happens. But there are plenty of reasons why a company might actually gratis just give information to the government. They might be trying to curry favor for to get another contract, a contract for some other kind of data arrangement with the government. They might be trying to avoid regulation, to try to sort of get on the good side of the government to avoid other legislation or regulation. So I think it’s important to also make clear that it’s not just the sale of data, it’s the disclosure under any circumstances of this kind of personal data requires a court order, requires legal process, and can’t just be done either voluntarily or for money.
Bob Zadek: Liza, we are just running out of time and I didn’t want to have the hour go by without profoundly thanking you, both for your article, for inducing me to say and our friends to say, “I didn’t know that,” “I didn’t think of that.” You have done that in spades. Please follow Liza Goitein’s work at the Brennan Center. She writes frequently and with great thought. She’s wonderful to follow. And if you have enjoyed this broadcast as a podcast, please indicate that with lots of stars and any comments you have, suggestions how to make the podcast better and better as the weeks go by. They are gratefully appreciated. Thank you so much, Liza, for your thoughts, and thank you so much to my friends out there for giving us an hour of your time this Sunday morning. Please enjoy the rest of the weekend.