'Fourth Amendment Is Not for Sale' Bill Passes House, Requires Warrant for Purchase of Online Data

When Thomas Massie (R-KY) and Jerry Nadler (D-NY) are co-sponsoring the same piece of legislation, then that legislation is worth taking a serious look at — for the pundits and shouters who constantly call for bipartisanship, you just don't get much more bipartisan than this.

The bill in question is the Fourth Amendment Is Not for Sale Act, H.R. 4639, which bears an interesting list of co-sponsors — and which passed the House of Representatives on Wednesday.

Dubbed the Fourth Amendment is Not For Sale, the legislation passed 219-199. It requires law enforcement and other government entities to get a warrant before buying information from third-party data brokers who purchase information gleaned from apps.
Division over the bill forged familiar fault lines to those seen in the debate over Section 702 of the Foreign Intelligence Surveillance Act (FISA), linking both conservatives and progressives who want greater privacy protections and pitting them against members from both parties who fear such protections could undercut an important law enforcement tool.
Those in favor of the bill argue the government should have to get a warrant before buying the commercially available information to carry out law enforcement activities.

You can view the entire text of the bill here.

This bill now goes to the Democrat-controlled Senate, where its future is less certain; Senator Rand Paul (R-KY) is driving progress there. Still, its passage is not impossible, not with a bill that actually does have supporters from both parties.

🚨Great news! The House passed one good bill today! 🚨

My bipartisan 4th Amendment is Not for Sale Act puts an end to the government’s practice of buying its way around the Bill of Rights by purchasing Americans’ personal data. Now it’s time for the Senate to do the same.
— Rand Paul (@RandPaul) April 18, 2024

If it fails to pass this year, it should be revived in each successive Congress until passage. Why? Here's why.

First: The Fourth Amendment requires this. It's a shame that this isn't as obvious as it ought to be, but the Constitution does require legislation to enforce its provisions; the Constitution, in effect, is the "what" of government, and legislation is (or, at least, should be) the "how." The rise of online data in the last 30 years or so has opened some new doors for irresponsible actors at the various levels of government to essentially sidestep the requirements of the Fourth Amendment by purchasing our personal information online. This slams the door on that practice.

Second: We're in the post-FISA world. That piece of nefarious legislation opens a lot of doors for unwarranted search and seizure. If this bill would throw some roadblocks in that process, so much the better.

The House Gets a Chance to Remove Warrantless Spying on Americans Through FISA Today

Of course, these days, we put up with all sorts of invasions of our privacy. For example: If you go through security at an airport, you are effectively giving consent to have TSA agents paw through your luggage – and maybe your person. But we don't have to put up with it.

I could tell you a story about when I was seventeen and drove to a town in a neighboring county on a Saturday night to see if Howard County girls were any prettier than Allamakee and Winneshiek County girls. (I didn’t notice much difference.) A local cop, seeing a kid and a car he didn’t recognize, pulled me over on the pretext that the fog lamps on my car may have been too close to the ground, and he wanted to measure them. When that was done, and when he not-too-subtly played his flashlight beam around the inside of my car, he asked if he could look in the trunk.

“No,” I told him.

“Why not?” the cop asked.

“Because I don’t have to let you,” I replied.

Even then, in the late '70s, I don’t think he expected that answer from a teenage boy. But I maintain to this day it was the right answer, and today my answer to that question would remain the same. The government is, rightly, strictly limited in its ability to paw through the private property of citizens, be that property a vehicle or our online information; that's by design, and it must remain that way. No warrant, no search. This bill sticks a thumb in the online hole in the Fourth Amendment dike.

Jerry Nadler (D-NY) had this to say about the bill:

“We have the Fourth Amendment for a reason,” Nadler continued. “If law enforcement wants to gather information about you, they should first obtain a warrant.”

Here's something I never thought I would ever say: I agree with Jerry Nadler.

The online world is still, in the grand scheme of things, something new when it comes to civil liberties and protections against unreasonable search and seizure. Even if private companies can purchase this information, that doesn't mean we should just ignore the Fourth Amendment's requirements for the government to obtain warrants before examining our personal information. This bill will do that. It should pass, and the president should sign it.

All too often, however, these days, the federal apparatus fails to do what it should.