Apps you use every day on your phone collect and sell sensitive data, including your location over time. That data could wind up in government hands without you even knowing it — and it’s already happening to millions of people across the country. When the government wants to obtain our private information, like our location data, the Fourth Amendment requires it to go to court and obtain a warrant, but over the past year, we’ve learned that the government has been buying its way around this requirement. Agencies are purchasing location data and other sensitive information from private companies without ever setting foot in a court.

Today, Sen. Ron Wyden and Rep. Jerrold Nadler led a bipartisan group of legislators in introducing the Fourth Amendment is Not For Sale Act, a critically important bill that will prevent agencies from circumventing core constitutional protections by purchasing access to data they would otherwise need a warrant to obtain. The ACLU is urging members of Congress to cosponsor the bill and to support all efforts to enact it quickly.

Last year, news outlets began reporting that federal agencies have been purchasing private location data and other sensitive information from several companies in the business of aggregating and selling data, including “data brokers” like Venntel and X-Mode. These companies often obtain the data through common apps like weather or dating apps, without users realizing it. The federal agencies that purchased the data, which include the Internal Revenue Service and the Department of Homeland Security, have used it to track people’s location without a warrant or probable cause — or even suspicion that anyone whose information was in the dataset had committed any wrongdoing. These reports raise significant concerns that the government is evading Fourth Amendment protections and violating our privacy rights.

In November, reports emerged that the U.S. military is purchasing location data harvested from apps aimed at Muslim users, including a dating app and a prayer app with over 98 million downloads worldwide. This revelation is an example of how data brokers can pose a serious threat to not only privacy but to religious freedom. For Muslim communities long subjected to intrusive government surveillance, it was yet another instance of intrusion into personal beliefs and lives.

We are working hard to uncover the full scope of the government’s purchase of private data and hold it accountable. But we can’t stop there. We must prevent these privacy invasions from occurring in the future. To do that, we need to bolster the protections in the Electronic Communications Privacy Act (ECPA). The ECPA, like the Fourth Amendment, prohibits the government from obtaining location data or similarly sensitive information from email, social media, phone, or internet service providers without court approval. In other words, if the government wants location information held by Verizon, for example, it must first get approval from a court.

When it comes to cell phone location information, the court approval must take the form of a warrant based on probable cause, as the Supreme Court held in a decision in an ACLU case in 2018. The problem is that the ECPA does not address situations where the government obtains that same data without a court order from data brokers and other entities that do not have a direct relationship with consumers. That means that when apps on your phone sell your data to data brokers like Venntel, that data could wind up in the hands of the government without a court ever reviewing the decision — as long as the government is willing to pay.

That outcome is at odds with the Fourth Amendment. It’s unclear whether the courts will ever address this problem, but what is clear is that Congress can fix it now. The Fourth Amendment is Not For Sale Act would do just that by preventing government agencies like Immigration and Customs Enforcement from buying access to our private data and skirting the Constitution in the process.This bill is necessary to protect our privacy and ensure the government doesn’t sell away our Fourth Amendment rights.

In addition to preventing government agencies from buying their way around important legal protections, the Fourth Amendment Is Not for Sale Act would:

• Stop law enforcement and intelligence agencies from buying personal data if the data was obtained from a user’s account or device, or via deception, hacking, violations of a contract, privacy policy, or terms of service;
• Extend existing privacy laws to infrastructure firms that own data cables and cell towers; and
• Take away the attorney general’s authority to grant civil immunity to providers and other third parties for assistance with surveillance not required or permitted by statute. Providers would retain immunity where a court orders them to assist with surveillance.

The ACLU sent a letter to Congress today urging members to endorse and pass this important legislation. We must make sure that government agencies like ICE and the IRS cannot violate our Fourth Amendment rights. Our privacy rights do not come with a price tag.

For decades, a special court—the Foreign Intelligence Surveillance Court, or “FISC”—has issued secret legal opinions authorizing the U.S. government to conduct sweeping programs of electronic surveillance. These opinions have had a profound impact on Americans’ rights to privacy, free expression, and free association. But many of them are entirely hidden from public view.

Secret law undermines democracy and the legitimacy of the judicial system—especially when the law being withheld from the public affects the rights of millions of people. So today, the ACLU is asking the Supreme Court to order the FISC to publish its secret opinions, redacted only as necessary to prevent genuine harm to national security. The petition—filed by ACLU lawyers, former Solicitor General Ted Olson, the Knight First Amendment Institute at Columbia University, and the Media Freedom and Information Access Clinic at Yale University—argues that the First Amendment gives the public a presumptive right of access to significant judicial opinions, including those of the FISC.

Today’s Supreme Court petition has its origins in the disclosures made by Edward Snowden, which exposed profound changes in the role of the FISC in overseeing government surveillance. In 2013, journalists working with documents provided by Snowden reported that, in the years after 9/11, the FISC had secretly authorized the NSA to engage in bulk surveillance. Days later, the ACLU and co-counsel filed a motion in the FISC seeking access to opinions that had authorized the NSA’s bulk collection of telephone call records. And in 2016, after the breadth of the FISC’s secret law had become even clearer, we filed another motion asking for access to the court’s opinions addressing novel or significant issues raised by the government’s surveillance applications.

The FISC operates behind closed doors and does not customarily publish its decisions. Although Congress required the government to review significant FISC opinions for declassification and public release when it passed the USA FREEDOM Act in 2015, that review is conducted solely by executive branch officials, not a court. In addition, the government has refused to apply this requirement to FISC opinions issued prior to June 2015.

Publication of the FISC’s opinions is crucial to public understanding of the nation’s surveillance laws. The FISC has interpreted those laws in deciding the legality of novel and sweeping surveillance programs, including the government’s warrantless and suspicionless searches of private emails; the government’s bulk collection of internet and telephone metadata; and the government’s surreptitious installation of malware. As long as the FISC’s opinions remain secret, it’s impossible to know the full extent to which our surveillance laws have permitted intelligence and law-enforcement agencies to collect information on Americans’ communications and activities.

But last year, the FISC held that because it is a specialized court that deals mainly with issues related to national security, the public has no First Amendment right to view its opinions—even major ones that affect fundamental liberties. Months later, both the FISC and its special court of appeals—the Foreign Intelligence Surveillance Court of Review (FISCR)—adopted an even more extreme position, holding that they lack jurisdiction even to consider First Amendment motions like the ones we filed.

As we argue in our petition, the FISC and FISCR were wrong about the First Amendment. Our legal system is founded on the presumption that laws are public. That presumption applies to all judicial opinions containing significant interpretations of law. There’s no special exception for opinions involving government surveillance and national security. In fact, federal courts around the country routinely publish opinions on those very topics. The FISC’s significant opinions, which affect the rights of millions, are no different. Like all courts, of course, the FISC may redact its opinions when necessary to conceal legitimate national security secrets. But to justify these kinds of redactions, the government must satisfy the First Amendment’s stringent standards.

The FISC and FISCR were also wrong about their jurisdiction. Courts around the country routinely consider First Amendment motions for access to their records—motions just like the ones we filed in the FISC. This makes sense. All courts created under Article III of the Constitution, including the FISC and FISCR, have inherent authority over their own records. If they didn’t, they wouldn’t be able to function properly, because they could not manage their own proceedings or ensure public access to the judiciary’s central work—its legal opinions.

Federal courts have uniformly held that because they have inherent authority over their own records, they can decide motions for access to those records. The same is true of the FISC and FISCR. They may be more specialized than most courts, but their inherent control over their own opinions gives them the power to consider motions for public access. This was the FISC’s own position until it reversed course in September 2020.

By placing its opinions outside the reach of the First Amendment, the FISC has deprived the public of information that’s vital to understanding how the FISC has interpreted the law, and the government surveillance that it has authorized. The Supreme Court must right this ship. The First Amendment gives the public a presumptive right to know how the FISC has shaped the nation’s laws and our liberties, and it’s time for the Supreme Court to enforce that right.

This piece was originally published by Just Security.