[Congressional Record Volume 170, Number 67 (Wednesday, April 17, 2024)]
[House]
[Pages H2459-H2468]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FOURTH AMENDMENT IS NOT FOR SALE ACT
General Leave
Ms. HAGEMAN. Madam Speaker, I ask unanimous consent that all Members
may have 5 legislative days in which to revise and extend their remarks
and insert extraneous material on H.R. 4639.
The SPEAKER pro tempore (Ms. De La Cruz). Is there objection to the
request of the gentlewoman from Wyoming?
There was no objection.
The SPEAKER pro tempore. Pursuant to House Resolution 1149 and rule
XVIII, the Chair declares the House in the Committee of the Whole House
on the state of the Union for the consideration of the bill, H.R. 4639.
The Chair appoints the gentleman from Alabama (Mr. Carl) to preside
over the Committee of the Whole.
{time} 1222
In the Committee of the Whole
Accordingly, the House resolved itself into the Committee of the
Whole House on the state of the Union for the consideration of the bill
(H.R. 4639) to amend section 2702 of title 18, United States Code, to
prevent law enforcement and intelligence agencies from obtaining
subscriber or customer records in exchange for anything of value, to
address communications and records in the possession of intermediary
internet service providers, and for other purposes, with Mr. Carl in
the chair.
The Clerk read the title of the bill.
The CHAIR. Pursuant to the rule, the bill is considered read the
first time.
General debate shall be confined to the bill and shall not exceed 1
hour equally divided and controlled by the chair and ranking minority
member of the Committee on the Judiciary, or their respective
designees.
The gentlewoman from Wyoming (Ms. Hageman) and the gentleman from New
York (Mr. Nadler) each will control 30 minutes.
The Chair recognizes the gentlewoman from Wyoming (Ms. Hageman).
Ms. HAGEMAN. Mr. Chairman, I yield myself such time as I may consume.
[[Page H2460]]
Today, the House will vote on H.R. 4639, the Fourth Amendment Is Not
For Sale Act.
Last July, the House Judiciary Committee favorably reported the
Fourth Amendment Is Not For Sale Act by a vote of 30-0, with one Member
voting present.
This bill makes crucial changes and closes a glaring loophole that
allows the government to sidestep the requirements of the Fourth
Amendment to purchase data of Americans.
I thank my colleague, Congressman Davidson, for introducing this
much-needed legislation. This bill is the result of years of bipartisan
negotiation, and I look forward to this debate and vote.
The Fourth Amendment guarantees to all of us the right to be free of
unreasonable government searches and seizures. However, the law and
doctrine concerning the Fourth Amendment has failed to keep pace with
the development of digital technologies.
Nearly 40 years ago, Congress passed the Electronic Communications
Privacy Act, or ECPA, in an attempt to navigate the digital age, but it
is clear that legislation is now insufficient to protect the
constitutional rights of Americans. It is time that Congress accounts
for the technological advances that have occurred in the decades since
ECPA was passed.
Today, seemingly every American carries a smartphone with them
wherever they go. These devices contain vast amounts of information of
Americans, such as where they travel, what they purchase, their health
information, and so on. As the Supreme Court has noted, these devices
``hold for many Americans the privacies of life.''
Before the modern internet, the Fourth Amendment required law
enforcement to execute a search warrant and subpoena the items they
wished to review. The officer executing the search would have to
provide a copy of the warrant and an inventory of the property seized.
However, today, Federal agencies often sidestep the requirements of the
Fourth Amendment and access and collect massive amounts of private
information on Americans by exploiting a legal loophole in the ECPA and
Fourth Amendment doctrine.
While ECPA prohibits communications companies from providing customer
information to the government in the absence of a subpoena, warrant, or
other court order, no such prohibition exists for providing this
information to third parties, such as data brokers. Instead of going to
a judge to demonstrate probable cause and obtain a warrant, government
agencies, like the Federal Bureau of Investigation, the Internal
Revenue Service, the Drug Enforcement Administration, and the
Department of Homeland Security can simply turn to data brokers and
purchase mass amounts of Americans' data.
The government is collecting vast amounts of data by purchasing it
from data brokers or other third parties. Media reports have detailed
that some data brokers have even tracked people at places of worship
and at protests.
While the Judiciary Committee has in recent years advanced major
reforms to overhaul ECPA, those bills have not yet passed into law. It
is long past time that Congress acts to protect the privacy of
Americans.
There is strong bipartisan support in Congress to finally address and
close the data broker loophole. This bill is exactly the type of
legislation needed to rein in the Federal Government and protect the
privacy rights of Americans.
The government is rifling through your personal information. You
should have the right to know about it, but the government can just
purchase your highly sensitive information from data brokers and use it
against you without your ever knowing.
The Fourth Amendment Is Not For Sale Act would close this legal
loophole and ensure that the government may only use existing statutes
compliant with the Fourth Amendment to lawfully surveil Americans.
When the government compels data brokers to disclose Americans'
personal data, it should be required to get a court order. With this
commonsense legislation, the government will no longer be able to make
an end-run around the Fourth Amendment to purchase the data of
Americans.
Mr. Chair, I urge my colleagues on both sides of the aisle to support
this important legislation, and I reserve the balance of my time.
Mr. NADLER. Mr. Chairman, I yield myself such time as I may consume.
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, as Ms. Hageman noted, a rare unanimous
30-0 vote.
When we download applications to our phones, we do so because we
think they will make our lives just a little bit 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 government entities, to name a few. While many argue
that the data they purchase from applications, websites, and social
media is deidentified 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 dataset 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.
{time} 1230
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 can go through
the trouble of establishing probable cause in getting a warrant, which
is what they should do, 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 communication 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.
[[Page H2461]]
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.
The whole point of this bill is to stop the end run that is being
done around the Fourth Amendment because of modern technology.
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 the bill to the
floor.
I encourage my colleagues to vote ``yes'' on this legislation, and I
reserve the balance of my time.
Ms. HAGEMAN. Mr. Chair, I yield such time as he may consume to the
gentleman from Ohio (Mr. Davidson).
Mr. DAVIDSON. Mr. Chair, I thank the gentlewoman for yielding.
Frankly, in the House it is rare today that we have an issue that
doesn't break on party lines, and privacy, unfortunately, isn't
unanimous.
The Fourth Amendment is clear that if the government wants to serve
your data, they need to have probable cause and a warrant or a
subpoena.
The Fourth Amendment is a restriction on what government can do. It
is not a restriction on commerce.
Unfortunately, government agencies are buying nonpublic data that
would otherwise require a warrant or a subpoena.
Congress confronts an opportunity today to end that practice by
passing the bipartisan and bicameral Fourth Amendment Is Not For Sale
Act. Nothing in this bill would prohibit a search, paid for or
otherwise, of public information. It would, however, restore privacy
protections grossly infringed by current practices. Congressman
Higgins, a career law enforcement officer, is offering an amendment
today that makes that clear. We have heard from law enforcement
agencies, and we want to make it clear, nothing in this bill is
designed to make your job harder to do.
Mr. LaLota will offer an amendment that I do adamantly oppose.
Frankly, it strips much of the content of the bill, and I regret that I
do oppose that amendment because it undermines the intent of the bill.
Closing this data broker loophole is an important step toward
restoring a government small enough to fit within the Constitution, and
we could afford a government that small.
Finding bad guys would be easier if you had perfect information on
everybody and full surveillance all the time. It has been recognized
that the Third Amendment was put in place, despite the fact that we all
might be more secure if we had a soldier stationed in our homes, but
the Third Amendment prevents the government from doing that.
The reality is that technology today effectively puts the government
everywhere we go. We all essentially have a digital ID. It is a phone
number, and we carry it with us. It is tracked. It goes to your car.
Your car spies on you, as well.
This data is being collected. People say, well, this amendment
doesn't deal with all that. So let me address that concern. People back
home might not realize that the committee structure in Congress is
broken up into areas of jurisdiction, meaning that certain committees
can deal only within their area of jurisdiction.
The Judiciary Committee can reform things in that committee of
jurisdiction, but other committees like Energy and Commerce would have
to address a broader topic.
People back home wonder why there so many half-baked solutions to
problems. Well, a lot of it comes down to our jurisdiction. We don't
solve the whole problem often.
What about foreign governments buying our data? Congress in the House
passed a ban on that last month. Just prior to the House ban, exporting
your data was banned by executive order from the Biden administration.
These are safeguards that are bipartisan, and, in some ways, they have
already reached to the executive branch.
Again, the Fourth Amendment is designed as a limitation on what the
government can do. I am grateful to have the support of over 150
organizations from Gun Owners of America on the one hand to the
American Civil Liberties Union on the other.
This is an issue that goes far and wide. It is important to
understand, too, people might realize that if they have got a journal
that they close it up and they keep it in their house, whether it is by
their bed or in a bookshelf or in a safe, the government has to get a
warrant or subpoena to get access to that, but your electronic
communications don't enjoy the same kinds of protection. They are not
being protected by the Fourth Amendment because you have trusted a
third party with that, like Gmail, like Microsoft, like Apple. Somebody
has your emails, and, because of that, the government is getting access
to some of this very private information, nonpublic information,
because they are able to buy it.
They shouldn't be able to buy it. If this bill passes and becomes
law, they won't be able to buy it and bypass your Fourth Amendment
rights.
I encourage all of our colleagues to support this important
legislation. Look, freedom surrendered is rarely reclaimed. We have
such an opportunity today to reclaim the right to privacy that is
supposed to be protected by the Fourth Amendment. I hope everyone will
join me in defending freedom today.
Mr. NADLER. Mr. Chair, I yield 2 minutes to the distinguished
gentlewoman from Washington (Ms. Jayapal).
Ms. JAYAPAL. Mr. Chair, I am proud to cosponsor this important
bipartisan bill that protects Americans' constitutional privacy rights
in this digital age by closing loopholes so that the government cannot
purchase Americans' private data from data brokers without a warrant.
Last year, the Office of the Director of National Intelligence
declassified a report on how the intelligence community buys
significant amounts of Americans' data from data brokers.
We are talking about very sensitive personal information that can
cover anything from Americans' location data to internet activity.
That report noted that this data ``has increasingly important risks
and implications for U.S. person privacy and civil liberties, as [the
data] can reveal sensitive and intimate information about
individuals.''
This isn't just some small group of people saying that we don't like
this. It is actually the Office of the Director of National
Intelligence saying that this practice of buying peoples' personal
information without a warrant from these data brokers is dangerous, and
it is a runaround of our constitutional protections.
Just last month, we banned foreign adversaries from buying this data.
It is important that this body today protect Americans, protect our
constitutional rights, and ban this practice. Vote ``yes'' on this
bill.
Ms. HAGEMAN. Mr. Chair, I yield 3 minutes to the gentleman from Ohio
(Mr. Jordan).
Mr. JORDAN. Mr. Chair, I thank the gentlewoman for yielding.
Mr. Chair, the government is not allowed to get your information
without a warrant. They are not allowed to do it. Even if they buy it,
they are not allowed to do it. That is all this thing says. It couldn't
be more straightforward or simple. It shows respect for the Fourth
Amendment and respect for Americans' privacy.
What we are saying is--and it has been said before by the ranking
member and Ms. Jayapal and the gentlewoman from Wyoming (Ms. Hageman),
you can't do an end run. You can't do a work-around. You can't say, oh,
we are allowed to get information we otherwise wouldn't be able to get
because we are going to purchase it from a data broker.
No, you can't do that. That is all this says.
If it would otherwise require a warrant, you can't go buy it, you
can't do a work-around.
It is a fundamental principle in our country. If the executive branch
wants to get your stuff, wants to look at your information, they have
to go to a separate and equal branch of government and get a probable
cause warrant. They can't go around that and say, oh, we are purchasing
it. This is public. They can't do it. It is plain and simple.
I commend the ranking member and the Democrats on the committee for
their bipartisanship. Again, as the ranking member said, we very seldom
[[Page H2462]]
have legislation that comes out unanimous like this.
But this committee, which is charged with more than any other
committee in Congress with protecting Americans' civil liberties, their
rights, the fundamental principles and liberties that make our country
the best place ever, unanimously agreed this thing should pass. I thank
them, and I thank Ms. Hageman for leading this debate on the floor
today for the committee and for our team. I also want to thank, of
course, the sponsor of the legislation, Mr. Davidson.
This is so simple.
Last week, we had a similar fight, a similar debate. Unfortunately,
we lost 212-212. Let's hope we can win this one.
I think this makes so much sense, so much common sense. It is so
consistent with how this great country has always operated. One branch
of government doesn't get a side at all. We have separate and equal
branches of government. If this branch wants information, the executive
branch wants your information, they have got to go to a separate and
equal branch and get a warrant. They can't go buy it from somebody else
and be sneaky about it and avoid what the Constitution clearly mandates
has to happen.
I urge a ``yes'' vote.
Mr. NADLER. Mr. Chair, I yield 2 minutes to the distinguished
gentlewoman from California (Ms. Jacobs).
Ms. JACOBS. Mr. Chair, I thank Ranking Member Nadler for his
leadership on this issue.
Under almost any other circumstance, law enforcement and intelligence
agencies need a warrant to access our personal information. Even in the
cases of utmost national security like when Americans are suspected of
terrorism, espionage, or cybercrimes, our government gets a warrant.
This process isn't too burdensome, and it doesn't prevent law
enforcement from investigating crimes or bringing people to justice.
But there are a few loopholes in this process when it comes to
section 702 queries and this data broker loophole, which allows our
government to circumvent our Fourth Amendment rights to access our
personal information without a warrant, a court order, or even a
subpoena.
This is only legal because they are buying the information. But our
rights shouldn't have a price, and cash shouldn't hold the same
legitimacy as a warrant.
Law enforcement claims--they say this, this is their claim--this
loophole, this data that they buy from data brokers is most useful
before probable cause can be demonstrated. That is the whole point of
the Fourth Amendment, of our right to prevent unreasonable seizures and
searches.
If you can't establish probable cause, you shouldn't be able to
access or buy this information unless a court says otherwise.
That is why we need this bipartisan Fourth Amendment Is Not For Sale
Act, which I am proud to co-lead.
Our bill doesn't inhibit law enforcement's investigations. Instead,
it ensures that police searches are above board, follow due process,
and protect Americans' privacy.
In a Congress where it feels almost impossible to get anything done
and where the American people think all we do is disagree, this shows
that we can do big things and there is a bipartisan consensus
especially when it comes to Americans' privacy rights.
Mr. Chair, I urge my colleagues on both sides of the aisle to support
this bill.
{time} 1245
Ms. HAGEMAN. Mr. Chairman, I yield 3 minutes to the gentleman from
Florida (Mr. Rutherford).
Mr. RUTHERFORD. Mr. Chair, I thank the gentlewoman for yielding.
Mr. Chair, I rise today in strong opposition to H.R. 4639, the Fourth
Amendment Is Not For Sale Act, and all of the attending amendments, as
well.
Mr. Chair, I also stand with, I think, every major law enforcement
agency association in the country. This bill will only make our
communities less safe by preventing local law enforcement and State law
enforcement from being able to access information that has been legally
collected and is publicly open-source information.
Every day, law enforcement officers use open-source, legally
collected, and commercially available data. We use that to connect the
dots to actually develop and find the leads that solve crimes like
child abduction, drug trafficking, terrorism, and all sorts of
different heinous crimes.
The Fourth Amendment Is Not For Sale Act will require law enforcement
to get a warrant before they can access otherwise publicly open data.
Google and Facebook can access it. The Chinese can access it. The
cartels and criminals can access it. Private actors can access it, but
not the police. Only law enforcement will be blocked.
I can tell you, as a former sheriff, police officers work on time-
sensitive cases every day where accessing this information quickly is a
matter of life and death. I am a 40-year law enforcement officer, and I
can think of dozens of cases where minutes mattered and my officers
saved lives by accessing this data.
Some of the supporters of this bill say that all of those other folks
who I just listed that still have access can't put you in jail. Let's
be truthful here. The police can't put you in jail either without
probable cause of a crime.
The Fourth Amendment Is Not For Sale Act will make communities far
less safe by making officers' jobs harder. In fact, it helps out only
the criminals.
Mr. Chair, I urge my colleagues to vote ``no'' on this dangerous,
antipolice bill.
Mr. NADLER. Mr. Chairman, I reserve the balance of my time.
Ms. HAGEMAN. Mr. Chairman, I yield 2 minutes to the gentleman from
New York (Mr. D'Esposito).
Mr. D'ESPOSITO. Mr. Chair, I rise this morning in strong opposition
to H.R. 4639, the Fourth Amendment Is Not For Sale Act.
While I thank my good friends and colleagues and House Republicans
from the Committee on the Judiciary for all the work that they do to
keep law enforcement safe and to give law enforcement the resources
they need to protect and serve, this bill is only going to hinder their
ability to investigate crimes.
Like my good friend, the gentleman from Florida (Mr. Rutherford)
said, you cannot arrest a suspect without probable cause.
The information that is no longer going to be obtained by law
enforcement agencies is information that has already been legally
collected. Nearly every major law enforcement union and agency
throughout this country is opposed to this legislation.
I was proud to serve in the City of New York Police Department as a
detective. It has investigated thousands of crimes, and we have
utilized these third-party platforms to obtain information that has
already been legally collected.
This legislation would, without a doubt, make communities less safe
and, in the process, would also lead us to follow in the same
disastrous direction that New York Democrats have by handcuffing the
ability of law enforcement to do their jobs.
Mr. NADLER. Mr. Chair, I reserve the balance of my time.
Ms. HAGEMAN. Mr. Chair, I yield 3 minutes to the gentleman from
Georgia (Mr. Clyde).
Mr. CLYDE. Mr. Chairman, I thank the gentlewoman for yielding.
Mr. Chairman, I rise today to strongly support H.R. 4639, the Fourth
Amendment Is Not For Sale Act. This critical bill would prohibit
government agencies, including the intelligence community, from
purchasing Americans' data from third-party data brokers.
U.S. Government agencies are purchasing Americans' data through a
loophole with third-party groups when they would otherwise need a
warrant. Recently, the Internal Revenue Service purchased records and
locations of millions of American cell phones. The FBI purchased
geolocation data for mobile advertising.
The Cato Institute recently reported that data brokers collect and
sell huge amounts of Americans' sensitive information, including
whether they have an interest in firearms. Data brokers sell lists--in
their words--of ``shooting fanatics'' and ``concealed carry licensed
gun owners.'' They even sell information about Americans' interest in
political organizations.
Government agencies like the FBI purchase this information as a
loophole to obtain private information about U.S. citizens without a
warrant.
[[Page H2463]]
Mr. Chair, I am deeply concerned that the practice of buying
commercial data could not only threaten Americans' Fourth Amendment
rights but could also pose a threat to their Second Amendment freedoms
and be used as a way to track and target lawful gun owners in America.
We must prevent this.
H.R. 4639 will provide the necessary guardrails to ensure that these
three-letter government agencies, including the intelligence community,
do not and cannot overstep and infringe on Americans' constitutional
rights.
Why can civilian companies buy this data but not the government
without a warrant? Because the government can take away your liberties.
The government can put you in jail. Civilian companies cannot do that.
Mr. Chair, I urge my colleagues on both sides of the aisle to stand
with the Constitution and support H.R. 4639, the Fourth Amendment Is
Not For Sale Act.
Mr. NADLER. Mr. Chairman, I yield myself the balance of my time.
Mr. Chairman, data brokers collect massive amounts of information
about Americans that can track and identify our most intimate details.
It is bad enough that companies have access to all this personal data,
but now the government can access this data, too, without securing a
warrant just by purchasing it on the open market. This amounts to an
end run around the Fourth Amendment.
This legislation would end this practice and protect our privacy as
the Constitution demands.
Mr. Chair, I urge all Members to support it, and I yield back the
balance of my time.
Ms. HAGEMAN. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, there are a couple of points that I would make. One is
that I reject the notion that in order to beat China or other foreign
adversaries, we must become like they are.
If the real opposition to this bill is that it prevents the United
States Government from becoming the same type of surveillance state
that Communist China is, then I think that says everything that we need
to know about those opposed to the bill, and I challenge them to
explain that position to their constituents.
Mr. Chair, I believe absolutely in protecting our constitutional
rights, and I believe it is important to understand the significance of
how these various Federal agencies have been abusing this power to
surveil and persecute American citizens.
As part of the Committee on the Judiciary's investigation into the
IRS' troubling visit to the home of journalist Matt Taibbi on the very
day that he testified before the Select Subcommittee on the
Weaponization of the Federal Government, we learned that the IRS
collected personal data from data brokers to use in its investigation
of Mr. Taibbi. For example, the IRS collected data from the data broker
Anywho, a people search website.
It is concerning enough that the IRS would take the extreme step of
visiting someone's home on the day he testified before Congress, but
the IRS also compiled its information from a data broker, potentially
accessing vast amounts of Taibbi's private information.
That is the nature of the abuse that these Federal agencies are
engaging in in violating Americans' civil rights.
Mr. Chair, the Fourth Amendment exists for a reason. There is no
exception to the Fourth Amendment requirement of getting a warrant.
Mr. Chair, I yield 1\1/2\ minutes to the gentleman from Ohio (Mr.
Turner) to speak on this bill.
Mr. TURNER. Mr. Chair, I rise in opposition of H.R. 4639. Vote ``no''
on H.R. 4639.
The bill bans law enforcement from paying for information available
to any willing buyer in all contexts. There is no exception, zero.
There is no exception to even allow law enforcement to pay for stolen
information to investigate and solve identity theft, data theft, data
breaches, ransomware attacks.
The bill will not make people safer. The bill puts police officers'
lives at risk. It bans the police from data used to understand the
danger they face when executing a search warrant or an arrest warrant.
If this bill becomes law, police will be going in blind when
executing a warrant, and this could cost lives.
This bill is bad for law enforcement, bad for the intelligence
community, and bad for national security.
That is why, yesterday, The Wall Street Journal wrote an editorial
opposing this bill. It is also why this bill is uniformly opposed by
the Fraternal Order of Police, the National Sheriffs' Association, the
National Association of Police Organizations, the International
Association of Chiefs of Police, the Association of State Criminal
Investigative Agencies, the Federal Law Enforcement Officers
Association, the Major Cities Chiefs Association, the Major County
Sheriffs of America, the National District Attorneys Association, the
National Fusion Center Association, and the National Narcotic Officers
Association Coalition.
Mr. Chair, I urge my colleagues: Do not digitally defund the police.
Ms. HAGEMAN. Mr. Chair, I yield myself the balance of my time to
close.
Mr. Chair, I think it is important for the American people to
understand the scope of what we are talking about and what our
government is purchasing from these third-party brokers. Data brokers
aggregate packages and sell the data acquired from a variety of
sources, including those that have already been described today.
Often, data brokers have thousands of different data points
reflecting information about a person that, when combined, reveal
valuable and intimate insights about an individual that would otherwise
be unavailable.
In other words, for data brokers, consumers and their information are
the product. For example, data brokers can receive geolocation data,
sometimes accurate to just a few yards, from a mobile device up to
14,000 times per day.
This data allows a purchaser to identify patterns that can reveal
where a person lives, where they work, and where they spend their free
time.
These actions allow government agencies and law enforcement to evade
the Fourth Amendment if they are allowed to purchase this data and
collect limitless information on Americans.
The Fourth Amendment Is Not For Sale Act closes this legal loophole
and stops data brokers from selling Americans' personal information to
the government by requiring the government to obtain a court order
before acquiring customer or subscriber information from a third party.
The fact is that we all support our police. We want them to have the
tools that they need to catch the bad guys, but I think if there is
anything that has been disclosed over the last several years, it is
that there are people within our intelligence community and who work
for the Federal Government, including the FBI, the IRS, and similar
agencies, who are abusing their power and authority and going after
people for political reasons.
Mr. Chair, that is one of the most important reasons as to why we
need to close this loophole.
As technology continues to advance and Americans incidentally share
more data through the devices we use every day, it is imperative for
Congress to protect privacy interests and ensure that government
agencies and law enforcement abide by the Fourth Amendment.
This bill does nothing more and nothing less. It simply protects our
Fourth Amendment rights.
Every person who has been elected to this body took an oath of office
to uphold our Constitution. That is what we are attempting to do with
the Fourth Amendment Is Not For Sale Act.
Mr. Chair, I urge my colleagues to vote in favor of this bill, and I
yield back the balance of my time.
The Acting CHAIR (Mr. Bost). All time for general debate has expired.
Pursuant to the rule, the bill shall be considered for amendment
under the 5-minute rule.
An amendment in the nature of a substitute consisting of the text of
the Rules Committee Print 118-28 shall be considered as adopted. The
bill, as amended, shall be considered as the original bill for the
purpose of further amendment under the 5-minute rule and shall be
considered as read.
The text of the bill, as amended is as follows:
H.R. 4639
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
[[Page H2464]]
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fourth Amendment Is Not For
Sale Act''.
SEC. 2. PROTECTION OF RECORDS HELD BY DATA BROKERS.
Section 2702 of title 18, United States Code, is amended by
adding at the end the following:
``(e) Prohibition on Obtaining in Exchange for Anything of
Value Certain Records and Information by Law Enforcement and
Intelligence Agencies.--
``(1) Definitions.--In this subsection--
``(A) the term `covered customer or subscriber record'
means a covered record that is--
``(i) disclosed to a third party by--
``(I) a provider of an electronic communication service to
the public or a provider of a remote computing service of
which the covered person with respect to the covered record
is a subscriber or customer; or
``(II) an intermediary service provider that delivers,
stores, or processes communications of such covered person;
``(ii) collected by a third party from an online account of
a covered person; or
``(iii) collected by a third party from or about an
electronic device of a covered person;
``(B) the term `covered person' means--
``(i) a person who is located inside the United States; or
``(ii) a person--
``(I) who is located outside the United States or whose
location cannot be determined; and
``(II) who is a United States person, as defined in section
101 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801);
``(C) the term `covered record' means a record or other
information that--
``(i) pertains to a covered person; and
``(ii) is--
``(I) a record or other information described in the matter
preceding paragraph (1) of subsection (c);
``(II) the contents of a communication; or
``(III) location information;
``(D) the term `electronic device' has the meaning given
the term `computer' in section 1030(e);
``(E) the term `illegitimately obtained information' means
a covered record that--
``(i) was obtained--
``(I) from a provider of an electronic communication
service to the public or a provider of a remote computing
service in a manner that--
``(aa) violates the service agreement between the provider
and customers or subscribers of the provider; or
``(bb) is inconsistent with the privacy policy of the
provider;
``(II) by deceiving the covered person whose covered record
was obtained; or
``(III) through the unauthorized accessing of an electronic
device or online account; or
``(ii) was--
``(I) obtained from a provider of an electronic
communication service to the public, a provider of a remote
computing service, or an intermediary service provider; and
``(II) collected, processed, or shared in violation of a
contract relating to the covered record;
``(F) the term `intelligence community' has the meaning
given that term in section 3 of the National Security Act of
1947 (50 U.S.C. 3003);
``(G) the term `location information' means information
derived or otherwise calculated from the transmission or
reception of a radio signal that reveals the approximate or
actual geographic location of a customer, subscriber, or
device;
``(H) the term `obtain in exchange for anything of value'
means to obtain by purchasing, to receive in connection with
services being provided for consideration, or to otherwise
obtain in exchange for consideration, including an access
fee, service fee, maintenance fee, or licensing fee;
``(I) the term `online account' means an online account
with an electronic communication service to the public or
remote computing service;
``(J) the term `pertain', with respect to a person, means--
``(i) information that is linked to the identity of a
person; or
``(ii) information--
``(I) that has been anonymized to remove links to the
identity of a person; and
``(II) that, if combined with other information, could be
used to identify a person; and
``(K) the term `third party' means a person who--
``(i) is not a governmental entity; and
``(ii) in connection with the collection, disclosure,
obtaining, processing, or sharing of the covered record at
issue, was not acting as--
``(I) a provider of an electronic communication service to
the public; or
``(II) a provider of a remote computing service.
``(2) Limitation.--
``(A) In general.--A law enforcement agency of a
governmental entity and an element of the intelligence
community may not obtain from a third party in exchange for
anything of value a covered customer or subscriber record or
any illegitimately obtained information.
``(B) Indirectly acquired records and information.--The
limitation under subparagraph (A) shall apply without regard
to whether the third party possessing the covered customer or
subscriber record or illegitimately obtained information is
the third party that initially obtained or collected, or is
the third party that initially received the disclosure of,
the covered customer or subscriber record or illegitimately
obtained information.
``(3) Limit on sharing between agencies.--An agency of a
governmental entity that is not a law enforcement agency or
an element of the intelligence community may not provide to a
law enforcement agency of a governmental entity or an element
of the intelligence community a covered customer or
subscriber record or illegitimately obtained information that
was obtained from a third party in exchange for anything of
value.
``(4) Prohibition on use as evidence.--A covered customer
or subscriber record or illegitimately obtained information
obtained by or provided to a law enforcement agency of a
governmental entity or an element of the intelligence
community in violation of paragraph (2) or (3), and any
evidence derived therefrom, may not be received in evidence
in any trial, hearing, or other proceeding in or before any
court, grand jury, department, officer, agency, regulatory
body, legislative committee, or other authority of the United
States, a State, or a political subdivision thereof.
``(5) Minimization procedures.--
``(A) In general.--The Attorney General shall adopt
specific procedures that are reasonably designed to minimize
the acquisition and retention, and prohibit the
dissemination, of information pertaining to a covered person
that is acquired in violation of paragraph (2) or (3).
``(B) Use by agencies.--If a law enforcement agency of a
governmental entity or element of the intelligence community
acquires information pertaining to a covered person in
violation of paragraph (2) or (3), the law enforcement agency
of a governmental entity or element of the intelligence
community shall minimize the acquisition and retention, and
prohibit the dissemination, of the information in accordance
with the procedures adopted under subparagraph (A).''.
SEC. 3. REQUIRED DISCLOSURE.
Section 2703 of title 18, United States Code, is amended by
adding at the end the following:
``(i) Covered Customer or Subscriber Records and
Illegitimately Obtained Information.--
``(1) Definitions.--In this subsection, the terms `covered
customer or subscriber record', `illegitimately obtained
information', and `third party' have the meanings given such
terms in section 2702(e).
``(2) Limitation.--Unless a governmental entity obtains an
order in accordance with paragraph (3), the governmental
entity may not require a third party to disclose a covered
customer or subscriber record or any illegitimately obtained
information if a court order would be required for the
governmental entity to require a provider of remote computing
service or a provider of electronic communication service to
the public to disclose such a covered customer or subscriber
record or illegitimately obtained information that is a
record of a customer or subscriber of the provider.
``(3) Orders.--
``(A) In general.--A court may only issue an order
requiring a third party to disclose a covered customer or
subscriber record or any illegitimately obtained information
on the same basis and subject to the same limitations as
would apply to a court order to require disclosure by a
provider of remote computing service or a provider of
electronic communication service to the public of a record of
a customer or subscriber of the provider.
``(B) Standard.--For purposes of subparagraph (A), a court
shall apply the most stringent standard under Federal statute
or the Constitution of the United States that would be
applicable to a request for a court order to require a
comparable disclosure by a provider of remote computing
service or a provider of electronic communication service to
the public of a record of a customer or subscriber of the
provider.''.
SEC. 4. INTERMEDIARY SERVICE PROVIDERS.
(a) Definition.--Section 2711 of title 18, United States
Code, is amended--
(1) in paragraph (3), by striking ``and'' at the end;
(2) in paragraph (4), by striking the period at the end and
inserting ``; and''; and
(3) by adding at the end the following:
``(5) the term `intermediary service provider' means an
entity or facilities owner or operator that directly or
indirectly delivers, stores, or processes communications for
or on behalf of a provider of electronic communication
service to the public or a provider of remote computing
service.''.
(b) Prohibition.--Section 2702(a) of title 18, United
States Code, is amended--
(1) in paragraph (1), by striking ``and'' at the end;
(2) in paragraph (2), by striking ``and'' at the end;
(3) in paragraph (3), by striking the period at the end and
inserting ``; and''; and
(4) by adding at the end the following:
``(4) an intermediary service provider shall not knowingly
divulge--
``(A) to any person or entity the contents of a
communication while in electronic storage by that provider;
or
``(B) to any governmental entity a record or other
information pertaining to a subscriber to or customer of, a
recipient of a communication from a subscriber to or customer
of, or the sender of a communication to a subscriber to or
customer of, the provider of electronic communication service
to the public or the provider of remote computing service
for, or on behalf of, which the intermediary service provider
directly or indirectly delivers, transmits, stores, or
processes communications.''.
SEC. 5. LIMITS ON SURVEILLANCE CONDUCTED FOR FOREIGN
INTELLIGENCE PURPOSES OTHER THAN UNDER THE
FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978.
(a) In General.--Section 2511(2)(f) of title 18, United
States Code, is amended to read as follows:
``(f)(i)(A) Nothing contained in this chapter, chapter 121
or 206 of this title, or section 705 of the Communications
Act of 1934 (47 U.S.C. 151 et seq.) shall be deemed to affect
an acquisition or activity described in clause (B) that is
carried out utilizing a means other than electronic
surveillance, as defined in section 101 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
[[Page H2465]]
``(B) An acquisition or activity described in this clause
is--
``(I) an acquisition by the United States Government of
foreign intelligence information from international or
foreign communications that--
``(aa) is acquired pursuant to express statutory authority;
or
``(bb) only includes information of persons who are not
United States persons and are located outside the United
States; or
``(II) a foreign intelligence activity involving a foreign
electronic communications system that--
``(aa) is conducted pursuant to express statutory
authority; or
``(bb) only involves the acquisition by the United States
Government of information of persons who are not United
States persons and are located outside the United States.
``(ii) The procedures in this chapter, chapter 121, and the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) shall be the exclusive means by which electronic
surveillance, as defined in section 101 of such Act, and the
interception of domestic wire, oral, and electronic
communications may be conducted.''.
(b) Exclusive Means Related to Communications Records.--The
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) shall be the exclusive means by which electronic
communications transactions records, call detail records, or
other information from communications of United States
persons or persons inside the United States are acquired for
foreign intelligence purposes inside the United States or
from a person or entity located in the United States that
provides telecommunications, electronic communication, or
remote computing services.
(c) Exclusive Means Related to Location Information, Web
Browsing History, and Internet Search History.--
(1) Definition.--In this subsection, the term ``location
information'' has the meaning given that term in subsection
(e) of section 2702 of title 18, United States Code, as added
by section 2 of this Act.
(2) Exclusive means.--Title I and sections 303, 304, 703,
704, and 705 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq., 1823, 1824, 1881b, 1881c,
1881d) shall be the exclusive means by which location
information, web browsing history, and internet search
history of United States persons or persons inside the United
States are acquired for foreign intelligence purposes inside
the United States or from a person or entity located in the
United States.
(d) Exclusive Means Related to Fourth Amendment-Protected
Information.--Title I and sections 303, 304, 703, 704, and
705 of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq., 1823, 1824, 1881b, 1881c, 1881d) shall
be the exclusive means by which any information, records,
data, or tangible things are acquired for foreign
intelligence purposes from a person or entity located in the
United States if the compelled production of such
information, records, data, or tangible things would require
a warrant for law enforcement purposes.
(e) Definition.--In this section, the term ``United States
person'' has the meaning given that term in section 101 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801).
SEC. 6. LIMIT ON CIVIL IMMUNITY FOR PROVIDING INFORMATION,
FACILITIES, OR TECHNICAL ASSISTANCE TO THE
GOVERNMENT ABSENT A COURT ORDER.
Section 2511(2)(a) of title 18, United States Code, is
amended--
(1) in subparagraph (ii), by striking clause (B) and
inserting the following:
``(B) a certification in writing--
``(I) by a person specified in section 2518(7) or the
Attorney General of the United States;
``(II) that the requirements for an emergency authorization
to intercept a wire, oral, or electronic communication under
section 2518(7) have been met; and
``(III) that the specified assistance is required,''; and
(2) by striking subparagraph (iii) and inserting the
following:
``(iii) For assistance provided pursuant to a certification
under subparagraph (ii)(B), the limitation on causes of
action under the last sentence of the matter following
subparagraph (ii)(B) shall only apply to the extent that the
assistance ceased at the earliest of the time the application
for a court order was denied, the time the communication
sought was obtained, or 48 hours after the interception
began.''.
The Acting CHAIR. No further amendment to the bill, as amended, shall
be in order except those printed in House Report 118-464. Each such
further amendment may be offered only in the order printed in the
report, by the Member designated in the report, shall be considered as
read, shall be debatable for the time specified in the report equally
divided and controlled by the proponent and an opponent, shall not be
subject to amendment, and shall not be subject to a demand for division
of the question.
{time} 1300
Amendment No. 1 Offered by Mr. Davidson
The Acting CHAIR. It is now in order to consider amendment No. 1
printed in House Report 118-464.
Mr. DAVIDSON. Mr. Chair, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 14, line 10, insert ``702,'' after ``304,''.
Page 14, line 12, insert ``1881a,'' after ``1824,''.
Page 14, line 21, insert ``702,'' after ``304,''.
Page 14, line 23, insert ``1881a,'' after ``1824,''.
The Acting CHAIR. Pursuant to House Resolution 1149, the gentleman
from Ohio (Mr. Davidson) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Ohio.
Mr. DAVIDSON. Mr. Chair, the purpose of this amendment is a technical
correction. Often this is done simply in the Rules Committee. For some
reason, they chose not to do it.
The bill itself states that existing Federal laws are the exclusive
means by which the government obtains location information of U.S.
persons or persons inside the United States, their web browsing
history, internet search history, or any other data that would require
a court order.
The list is complete except for section 702 of the Foreign
Intelligence Surveillance Act. That needs to be added. That is all this
amendment does is simply cover comprehensively the list of authorities,
including section 702 as a covered authority. The bill isn't really
complete without covering that.
I think last week the body spoke that they want to continue to have
the Foreign Intelligence Surveillance Act. This bill would say it also
covers everything, including what just passed last week.
Mr. Chair, I reserve the balance of my time.
Mr. NADLER. Mr. Chair, I claim the time in opposition to the
amendment, even though I am not opposed to it.
The Acting CHAIR. Without objection, the gentleman from New York is
recognized for 5 minutes.
There was no objection.
Mr. NADLER. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, this amendment makes technical changes to the bill to
clarify that it does not interfere with section 702 of FISA. FISA,
including but not limited to section 702, is the only way the
government should acquire data that in any other scenario would need a
warrant. While we may have different opinions on how the government
should treat the incidentally collected U.S. person data, as we debated
last week, we should all agree that this bill is not intended to
address or affect section 702 in any way.
This amendment is a technical change to correct a minor error in the
bill, and I hope that all Members will support it.
I thank my colleague for offering the amendment, and I yield back the
balance of my time.
Mr. DAVIDSON. Mr. Chair, I will close by saying I think the case is
clear. I appreciate Mr. Nadler for working with me.
I thank Senator Wyden and Senator Lee for being champions of this on
the Senate side. I thank the unusual cohort of colleagues here. We have
Zoe Lofgren, Pramila Jayapal, Sara Jacobs, and Jerry Nadler from the
Democratic Party, and on our side Chairman Jim Jordan, Andy Biggs,
Thomas Massie, and me.
There are so few things today that everyone agrees on. When you have
the political spectrum covered from those angles, I think, hopefully,
the American people will see this is a reliable solution. It moved
through the Judiciary Committee with unanimous support. We don't
believe it will get unanimous support today, but I sure hope that it
passes.
Mr. Chair, I encourage my colleagues to support this amendment and
the underlying bill, and I yield back the balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Ohio (Mr. Davidson).
The amendment was agreed to.
Amendment No. 2 Offered by Mr. Higgins of Louisiana
The Acting CHAIR. It is now in order to consider amendment No. 2
printed in House Report 118-464.
Mr. HIGGINS of Louisiana. Mr. Chair, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 2, strike line 24 and all that follows through line 8
on page 3, and insert the following:
[[Page H2466]]
``(C) the term `covered record'--
``(i) means a record or other information that--
``(I) pertains to a covered person; and
``(II) is--
``(aa) a record or other information described in the
matter preceding paragraph (1) of subsection (c);
``(bb) the contents of a communication; or
``(cc) location information; and
``(ii) does not include a record or other information
that--
``(I) has been voluntarily made available to the general
public by a covered person on a social media plat form or
similar service;
``(II) is lawfully available to the public as a Federal,
State, or local government record or through other widely
distributed media;
``(III) is obtained by a law enforcement agency of a
governmental entity or an element of the intelligence
community for the purpose of conducting a background check of
a covered person--
``(aa) with the written consent of such person;
``(bb) for access or use by such agency or element for the
purpose of such background check; and
``(cc) that is destroyed after the date on which it is no
longer needed for such background check; or
``(IV) is data generated by a public or private ALPR
system;''.
Page 5, line 22, strike ``and'' at the end.
Page 6, line 9, strike the period at the end and insert ``;
and''.
Page 6, insert after line 9 the following:
``(L) the term `automated license plate recognition system'
or `ALPR system' means a system of one or more mobile or
fixed high-speed cameras combined with computer algorithms to
convert images of license plates into computer-readable
data.''.
The Acting CHAIR. Pursuant to House Resolution 1149, the gentleman
from Louisiana (Mr. Higgins) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from Louisiana.
Mr. HIGGINS of Louisiana. Mr. Chair, as the underlying bill was being
developed, those of us on both sides of the aisle were concerned about
constitutional protections, the preservation of our representative
Republic, and the core principles of individual rights, liberties,
freedoms, and privacies that our representative Republic relies upon
and our citizenry anticipates and expects, rightfully so, that their
Congress shall protect.
As the underlying bill was being developed, there were concerns
communicated from law enforcement and citizens across the country, at
the local level especially, and there began an effort, a very good-
faith effort, across the spectrum politically here in this body to
address those concerns. That is what my amendment does.
The Fourth Amendment specifically calls for probable cause to be
necessary for a warrant particularly describing the place to be
searched and the persons or things to be seized.
My amendment seeks to address the concerns of law enforcement. We
have sworn an oath to protect our Constitution, but we are bound by
duty to protect the communities that we serve. Therefore, legitimate
investigations are required. Consistent with that ethic, I propose my
amendment to not include as a covered record the following items to
ensure that law enforcement has the clarity to know that they will
continue to have the tools they need to succeed:
Records made available to the general public on social media. This
remains available to law enforcement, as clarified by my amendment.
Records made lawfully available through government records or widely
distributed media. This remains available to local law enforcement and
is clarified in my amendment.
Records wherein consent has been given by the citizen or the business
for the government to access for a background check. This remains
undisturbed and is clarified by my amendment.
Records generated by public or private ALPRs, automated license plate
recognition systems. This is a very important consideration that law
enforcement was concerned about. Again, my amendment clarifies and
addresses the fact that this right for legitimate investigation through
ALPR remains undisturbed.
I encourage full support of my amendment from my colleagues.
Mr. Chair, I yield to the gentleman from Texas (Mr. Nehls), my friend
and colleague of the Thin Blue Line.
Mr. NEHLS. Mr. Chair, I rise in strong support of Mr. Higgins'
amendment before us today which seeks to address some of the concerns
several law enforcement groups have with this legislation.
As someone who has served in law enforcement for nearly 30 years, I
understand the concerns our brave men and women in blue have with this
bill.
Now, more than ever, we must uphold law and order in our society and
also ensure the Fourth Amendment rights of the American people are
protected.
That is why this amendment is so important. It clarifies data
exceptions for public content, public records, background checks, and
license plate readers in order to help preserve some of the tools law
enforcement currently uses.
I will give you an example. A kid threatens to shoot up a school on
Facebook. A data collector is scanning social media for posts like this
and sends it to local law enforcement. The police would be able to use
this information gathered from social media under this amendment
because it is public user-generated information.
The same applies to police records, property deeds, and other public
records. We want to make crystal clear these records will remain
available for our law enforcement community to use in their
investigations while also preventing unreasonable search and seizure by
the government.
As a former sheriff, I will always back the blue and always uphold
the Constitution and the rights of citizens therein. I believe this
amendment allows us to do both.
Mr. Chair, I encourage my colleagues on both sides of the aisle to
vote ``yes.''
Mr. HIGGINS of Louisiana. Mr. Chair, may I inquire how much time is
remaining.
The Acting CHAIR. The gentleman from Louisiana has 15 seconds
remaining.
Mr. HIGGINS of Louisiana. Mr. Chair, 15 seconds, for a gentleman from
Louisiana, is just about enough time to say thank you.
Mr. Chair, I encourage support of my amendment, and I yield back the
balance of my time.
Mr. NADLER. Mr. Chair, I claim the time in opposition to the
amendment, although I am not opposed to it.
The Acting CHAIR. Without objection, the gentleman from New York is
recognized for 5 minutes.
There was no objection.
Mr. NADLER. Mr. Chair, I yield myself such time as I may consume.
Mr. Chair, this amendment will clarify that the underlying bill will
not impact information that is publicly available, that the government
has in its own databases, or that the government lawfully acquires.
Scraping pictures and data off public social media accounts for facial
recognition technology is certainly a problem, but it is not this
problem.
It does us no good to conflate one surveillance issue with another.
This legislation is intended to prohibit the purchase of data in cases
where Federal law enforcement would otherwise need a warrant. License
plate databases, facial recognition technology platforms, and advanced
policing technologies are often powered by publicly available data.
We are not here to impede government access to data that is public or
that law enforcement already contains in its databases. While I have
serious concerns about the irresponsible deployment of advanced
policing technologies, those are fights for another day.
Mr. Chairman, I thank the gentleman for his amendment. I encourage my
colleagues to join me in supporting it, and I yield back the balance of
my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from Louisiana (Mr. Higgins).
The amendment was agreed to.
Amendment No. 3 Offered by Mr. LaLota
The Acting CHAIR. It is now in order to consider amendment No. 3
printed in House Report 118-464.
Mr. LaLOTA. Mr. Chair, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
Page 6, line 16, insert after ``information.'' the
following: ``This subparagraph does not apply in the case of
information that the law enforcement agency or element of the
intelligence community could lawfully access without a
warrant.''.
Page 7, line 11, insert after ``value.'' the following:
``This paragraph does not apply in
[[Page H2467]]
the case of information that the law enforcement agency or
element of the intelligence community could lawfully access
without a warrant.''.
The Acting CHAIR. Pursuant to House Resolution 1149, the gentleman
from New York (Mr. LaLota) and a Member opposed each will control 5
minutes.
The Chair recognizes the gentleman from New York.
Mr. LaLOTA. Mr. Chair, I yield myself such time as I may consume.
Indeed, Mr. Chair, the Fourth Amendment should not be for sale. We
agree on that. That is to say our government should not be able to buy
from a third-party information about American citizens that it could
otherwise not obtain without a warrant.
The title of the bill, the Fourth Amendment Is Not For Sale, is
compelling. We should all agree to that, yet the language of the bill
does not coincide with the title of the bill. The bill, without
amendment, is somewhere between innocently misleading and a full-on
Fourth Amendment bait and switch.
My amendment would narrowly tailor the bill to include searches and
seizures normally covered by the Fourth Amendment.
Mr. Chair, the Fourth Amendment states: ``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 no
warrants shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.''
{time} 1315
So let's agree that Congress should restrict the government from, via
a third party, searching or seizing persons that it could not otherwise
search or seize without a warrant. We should all agree on that.
Everyone in the House, from the Freedom Caucus to the squad and
everybody else, should agree on that.
If that is what the bill actually said, then the bill would likely
sail through the House without any real, legitimate opposition because
government should not be able to contract out its violation of our
Fourth Amendment protections.
Yet, without my amendment, the bill would prevent our law enforcement
officers from utilizing information that is currently publicly
available, information that is accessible without a need for a warrant
in fighting crime.
This Republican Conference backs the blue. It is part of our
Commitment to America to keep America safe. Unfortunately, the bill,
without my amendment, breaks our commitment and would prevent law
enforcement from using everyday tools which do not violate any
American's Fourth Amendment rights.
My amendment would clarify that any restriction made on this bill and
information that could be obtained by law enforcement or the
intelligence community would not include information that is lawfully
obtainable without a warrant.
If my amendment is adopted, then the name of the bill would actually
fit, and the bill would actually give more weight and confidence to our
Nation's Fourth Amendment.
Mr. Chairman, I reserve the balance of my time.
Mr. NADLER. Mr. Chair, I claim the time in opposition.
The Acting CHAIR. The gentleman from New York (Mr. Nadler) is
recognized for 5 minutes.
Mr. NADLER. Mr. Chair, this amendment would create exceptions for
government purchase of data that a Federal agency can already lawfully
access without a warrant. I am sure that my colleague from New York
means well, but I worry that this amendment would create confusion in
the long run rather than clarify an area where we both agree.
I agree that the government should continue accessing information
that it is already able to acquire without a warrant, but we should be
closing the door on government purchase of third-party data, period.
First, it is unclear how a data broker subscription for ``only
information that law enforcement could acquire without a warrant''
would work. By suggesting that some data could be purchased, we open up
a Pandora's box of hypotheticals instead of turning off a tap that
should not be on to begin with.
Second, when section 2703 of the Electronic Communications Privacy
Act was passed back in 1986, the internet was in its nascency. At that
time, there were few, if any, data brokers purchasing data and selling
it to the government. I am confident that if they had existed, then
third parties' data sales would have been included in the prohibition
against service providers sharing their data with the government
without a warrant.
As I said, I appreciate what the gentleman is trying to do, but I
cannot agree with this approach.
Mr. Chair, I oppose the amendment, and I encourage my colleagues to
do the same. I reserve the balance of my time.
Mr. LaLOTA. Mr. Chair, I am prepared to close, and I reserve the
balance of my time.
Mr. NADLER. Mr. Chair, I yield 2 minutes to the gentleman from Ohio
(Mr. Davidson).
Mr. DAVIDSON. Mr. Chair, I thank the gentleman for yielding.
Mr. Chair, I strongly oppose Mr. LaLota's amendment.
He makes a great point. We all want to stand with law enforcement.
That is a unifying position for Republicans, and I think most Democrats
want to support them, as well.
Nothing in this bill prohibits them from doing their job. The Fourth
Amendment is a restriction on government activity though, and they are
already used to getting warrants for all kinds of things. The novelty
is the way that they acquire data to avoid getting a warrant or
subpoena. In fact, under the Electronic Communications Privacy Act and
the Stored Communications Act, they are required to get a court order.
This amendment doesn't make it clear that this isn't an effort to
expand that to say, no, you don't really have to do that anymore.
It is an expansion of surveillance without a warrant instead of the
purpose of the bill, so it is hostile to the entire purpose of the
bill. It guts the core of the protection that is meant to be restored
here.
Mr. Chair, for that reason, I oppose Mr. LaLota's amendment, and I
strongly encourage our colleagues to do the same so that we can pass a
very functional Fourth Amendment Is Not For Sale Act and restore the
infringed right to privacy that Americans need restored.
Mr. LaLOTA. Mr. Chair, I yield myself the balance of my time.
Mr. Chair, we cannot say that we support law enforcement officers and
then take away the tools they need to do their job.
My amendment would strike a proper balance between ensuring our
government does not use a third party to violate the Fourth Amendment
while at the same time preserving the ability for law enforcement to do
its job.
Without adopting my amendment, this bill will make it almost
impossible for State, local, and Federal law enforcement to investigate
crime. We should be making it easier for law enforcement to do their
job rather than tying one hand behind their back. At the same time, we
should protect against government's warrantless searches and seizures
of American citizens.
Mr. Chair, I urge all of my colleagues to vote ``yes,'' and I yield
back the balance of my time.
Mr. NADLER. Mr. Chair, I yield myself the balance of my time.
Mr. Chair, I urge my colleagues to vote against this amendment. We
all support the police and criminal investigations, but we all support,
we hope, the Fourth Amendment, the requirement to get a warrant for
probable cause in order to search something or somebody.
This bill is to avoid an end run around that by the government
purchasing information from data brokers for which they should need a
warrant. This amendment would gut that and destroy the whole purpose of
the bill.
The bill is essential to protecting liberty and to protecting the
protections of the Fourth Amendment.
Mr. Chair, I urge the defeat of this amendment, and I yield back the
balance of my time.
The Acting CHAIR. The question is on the amendment offered by the
gentleman from New York (Mr. LaLota).
[[Page H2468]]
The question was taken; and the Acting Chair announced that the noes
appeared to have it.
Mr. LaLOTA. Mr. Chair, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further
proceedings on the amendment offered by the gentleman from New York
(Mr. LaLota) will be postponed.
Mr. DAVIDSON. Mr. Chairman, I move that the Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
LaLota) having assumed the chair, Mr. Bost, Acting Chair of the
Committee of the Whole House on the state of the Union, reported that
that Committee, having had under consideration the bill (H.R. 4639) to
amend section 2702 of title 18, United States Code, to prevent law
enforcement and intelligence agencies from obtaining subscriber or
customer records in exchange for anything of value, to address
communications and records in the possession of intermediary internet
service providers, and for other purposes, had come to no resolution
thereon.
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