“The Fourth Amendment is Not For Sale” – bill gets renewed attention amidst telecoms privacy concerns

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Privacy activists have raised questions about law enforcement agencies’ increased use of commercial phone data and a couple of lawmakers have drafted legislation to address these concerns. While commercial phone data can aid in investigations, it is obtained in an unregulated way and the government could abuse it to illegally track citizens.

A 14-year-old girl from Missouri went missing last year in January. The police labeled her a runaway because she had left her phone behind and the data had been wiped.

A few hundred miles away in Arkansas, a local prosecutor, Kevin Metcalf, heard about the story and suspected she had been abducted. Metcalf, who also works at a nonprofit that assists police in data-driven investigations, pursued his hunch through commercial data from a company that tracks the locations of millions of people collected from apps.

Using the data, he was able to see devices that had been around the girl’s home and identified a device that was at the girl’s home and traveled all the way to Wichita, Kansas, the WSJ reported. Metcalf shared the data with the police, and the device’s owner was arrested, together with his accomplice, and the girl was rescued.

The kind of movement history the data broker provided is similar to what the police get from cell towers or tech giants after getting a warrant. Critics have described the use of such data by law enforcement agencies as warrantless surveillance.

Data from data brokers has been quietly used by intelligence and military agencies for years. But in the recent past, law enforcement agencies have increasingly used such data to aid in investigations.

According to the Wall Street Journal, the FBI and IRS have used such data from investigations, and the Department of Homeland Security has used it for immigration and border security enforcement.

In response to concerns surrounding the use of commercial data by law enforcement, Sen. Rand Paul (R-KY) and Sen. Ron Wyde (D-OR) have put forward a bill called the “Fourth Amendment Is Not for Sale Act.” It would require law enforcement and other government agencies to obtain a warrant before using commercial data.

But the bill would not have prevented what happened in the case of the missing girl. As a private citizen, working in his role at a nonprofit, Metcalf is not prohibited from using commercial data. The bill would not prevent him from obtaining the data and sharing it with the police.

Critics have warned that law enforcement’s use of such data will result in illegal and warrantless searches. Besides, there already are avenues police can use to get data from technology companies.

A provision in the Electronic Communications Privacy Act requires tech firms to disclose private data in the cases of emergencies “if the provider reasonably believes that an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.”

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