FBI started buying Americans’ location data again, Kash Patel confirms

Tom Cotton supports FBI data purchasing, compares it to searching people's trash.

See full article...

 

[Tonkaman]

Remember, "rules for thee, not for me" so no, nothing will happen.

I know that you know, just as frustrated as you are.

The perfect example is that congress passed a law to protect the privacy of their own video rental habits in the 1980s. Only after the video store owner made the records of Robert Bork public and embarrassed one of the elites.

https://en.wikipedia.org/wiki/Video_Privacy_Protection_Act

 

[JMTronicHobbyist]

Starting to wonder what the point of all those amendments were for.

They forgot to add "but on computer" to each one. Silly non-psychic Founders!

 

[Derecho Imminent]

Your tax dollars at work - cheating the constitution.

 

[Cloudgazer]

Let’s also reject Cotton’s framing that “commercially available” is automatically equivalent to “constitutionally available.” Doesn’t work like that.

Unfortunately it typically does work like that.

There are exceptions if the private search is done at the behest of the government, or if the information is turned over due to the demands of the government - but otherwise there is longstanding supreme court precedent that the existing court is unlikely to overturn.

https://supreme.justia.com/cases/federal/us/466/109/

This Court has also consistently construed this protection (the 4th amendment) as proscribing only governmental action; it is wholly inapplicable "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official."

The government can't employ a private actor (like say Flock) to perform searches on its behalf without involving the 4th amendment. It can't compel a private actor such as Google or Apple or an ISP to hand over private data without involving the 4th amendment. But where data has fallen into the hands of somebody willing to sell it, it can almost certainly purchase that data at market prices without involving the 4th amendment.

 

[SixDegrees]

The perfect example is that congress passed a law to protect the privacy of their own video rental habits in the 1980s. Only after the video store owner made the records of Robert Bork public and embarrassed one of the elites.

https://en.wikipedia.org/wiki/Video_Privacy_Protection_Act

Other notable examples: Federal recommendations on thermostat settings of 68 F in winter were given an explicit exemption for government buildings - where they were often noted set at much higher temps - and the ongoing exemption on toilet flush limits - although in this case it's possible an actual case might be made that in a Congressional setting, a full five-gallon flush might actually be necessary to sufficiently clear the bowl.

 

[afrorick]

The problem in this case isn't that the government is purchasing it (it's purchasing something that is legally available), it's that the data is available to begin with. Since the government will not make the gathering of this data illegal under any circumstance ("the user chooses to make it available" trap), the government is just a beneficiary of someone else not just going through your trash (because you can choose what goes in the trash and shred it if it is confidential) - but going in your house and looking at all your stuff before it gets sorted into trash.

 

[graylshaped]

The problem in this case isn't that the government is purchasing it (it's purchasing something that is legally available), it's that the data is available to begin with. Since the government will not make the gathering of this data illegal under any circumstance ("the user chooses to make it available" trap), the government is just a beneficiary of someone else not just going through your trash (because you can choose what goes in the trash and shred it if it is confidential) - but going in your house and looking at all your stuff before it gets sorted into trash.

It is ALSO that the government should not be obtaining the information en masse and using it in this fashion. At one point, Congress merely asking "Are you doing this?" was enough to point out the executive branch was not operating within the law and they stopped.

If this administration was a dog, Kristi Noem would shoot it.

 

[iquanyin]

Ron is awesome. There are so few politicians who have a clue about technology. Ron not only understands the tech, but he also how it impacts the people he US population.

He really gets it, and I almost never see him taking he corporate side. He's protecting us, not the donors.

joining in. he’s my rep too, and even when i lived in hawaii for years, i still followed what he did just to see a good congressman doing his job well. if most of our reps were like him, things would be good in this country.

 

[Cloudgazer]

It is ALSO that the government should not be obtaining the information en masse and using it in this fashion. At one point, Congress merely asking "Are you doing this?" was enough to point out the executive branch was not operating within the law and they stopped.

If this administration was a dog, Kristi Noem would shoot it.

But it isn't against the law unfortunately. Even the Senator who asked the question doesn't think it is against the law - if he did he wouldn't be talking about passing a law to prevent it.
As this article says:

Wyden called Patel’s admission “exhibit A for why Congress needs to pass our bipartisan, bicameral bill, the Government Surveillance Reform Act.” The bill, introduced in the Senate by Wyden and Sen. Mike Lee (R-Utah), would generally prohibit the federal government from buying location information on people in the US without a warrant or order under the Foreign Intelligence Surveillance Act (FISA). The bill provision would also protect US residents’ communications content, web browsing history, and Internet search history.

It should be illegal for the government to buy this data. It should be illegal for firms to sell this data. But in the US neither is presently illegal and that sucks.

 

[graylshaped]

But it isn't against the law unfortunately. Even the Senator who asked the question doesn't think it is against the law - if he did he wouldn't be talking about passing a law to prevent it.
As this article says:

Wyden called Patel’s admission “exhibit A for why Congress needs to pass our bipartisan, bicameral bill, the Government Surveillance Reform Act.” The bill, introduced in the Senate by Wyden and Sen. Mike Lee (R-Utah), would generally prohibit the federal government from buying location information on people in the US without a warrant or order under the Foreign Intelligence Surveillance Act (FISA). The bill provision would also protect US residents’ communications content, web browsing history, and Internet search history.

It should be illegal for the government to buy this data. It should be illegal for firms to sell this data. But in the US neither is presently illegal and that sucks.

It is presumptively unconstitutional, and a bill taking the leeway out of it is absolutely a reasonable way to look at and address it. This SCOTUS has made it plain that the more explicit Congress is in the laws it crafts within the powers granted to it the arbitrariness of "let the courts decide" goes away.

 

[Cloudgazer]

It is presumptively unconstitutional, and a bill taking the leeway out of it is absolutely a reasonable way to look at and address it.

I gave the citation earlier - it is actually undoubtedly constitutional - that's precisely why they're buying the data from commercial vendors.
I'll put the pull quote here again:

This Court has also consistently construed this protection [the 4th amendment] as proscribing only governmental action; it is wholly inapplicable "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official."

So unless you're claiming it violates some other constitutional provision I don't see how you can claim it is 'presumptively unconstitutional'. I mean I guess you could be presuming it is constitutional but the courts and legislature clearly aren't, so you're kinda out on a limb there.

This SCOTUS has made it plain that the more explicit Congress is in the laws it crafts within the powers granted to it the arbitrariness of "let the courts decide" goes away.

Well the 1984 SCOTUS made it clear that a private search, no matter how unreasonable or invasive, doesn't violate the 4th amendment even when the results of it are shared with the government. The majority included reliably moderate/liberal justices such as Stevens and O'Conner.

Even if we dismiss the current SCOTUS the relatively liberal SCOTUS of 1984 was one we trusted no? Or are we accepting no Supreme Court after Warren?

 

[graylshaped]

So unless you're claiming it violates some other constitutional provision I don't see how you can claim it is 'presumptively unconstitutional'.

Absent an actual ruling on this act, I presume it is unconstitutional. Why would I claim otherwise? Lower the hackles, sir.

 

[Cloudgazer]

Absent an actual ruling on this act, I presume it is unconstitutional.

Ok so we have gone from 'they are not operating within the law' to 'It is presumptively unconstitutional' to 'I presume it is constitutional'.
You get those are three very different statements right?

Why would I claim otherwise? Lower the hackles, sir.

I don't expect you to 'claim otherwise'. I expect you to provide some sort of factual basis for claims of fact. Or to make it very clear that you're not making claims of fact but rather claims of an unsupported personal opinion. Is that unreasonable?

If all you are saying is something to the effect of 'I am wrong about the constitution and am not interested in being right' then vaya con dios. I don't think it does you any good to hold wrong beliefs without questioning them but its your call at least when they don't endanger others.

If however you are saying 'this is presumptively unconstitutional' about something that is very clearly not then I'm going to argue with you.
If you want to make a claim about presumptive violation of the bill of rights you need to identify which clause. And if provided good caselaw that shows you're wrong you need to at least attempt to explain why the legal reasoning in that case doesn't apply.

That case is not exactly the same as this case isn't a good argument. It's not how the law works. Something isn't presumed unconstitutional just because there isn't an exact supreme court case allowing it any more than something is presumed constitutional just because there isn't an exact supreme court case banning it.

 

[EnPeaSea]

(snip) So now we have parents being arrested for kids playing in their front yard alone (/snip)

I've heard of cops being called by a busy body neighbor annoyed by the noise of kids playing, determining that the parent was observing from inside, and moving on because nothing was wrong, but not anyone being arrested over it.

 

[rhcaldwell]

Simple solution: make storing, trading, or selling location data a felony federal crime. That will break a ton of rice bowls, so don’t hold your breath, fellow serfs.

 

[jimmy.j.r]

The Obama administration argued in federal court in 2012 that cellphone location data isn't constitutionally protected: https://www.wired.com/2012/09/feds-say-mobile-phone-location-data-not-constitutionally-protected

SCOTUS ruled in 2018 that cellphone location data is in fact constitutionally protected: https://www.nytimes.com/2018/06/22/us/politics/supreme-court-warrants-cell-phone-privacy.html

So the feds buying location data didn't start until Trump 1 because they were previously just directly collecting it themselves, and then once the SCOTUS ruling came down they decided buying it from data brokers was a viable end-run around the SCOTUS ruling.

"shut up!!! obama good!!! trump bad!!!"

 

[L0neW0lf]

If they buy the data, they have plausible deniability about the surveillance and malfeasance involved in how the data was obtained. It's that simple.

"How were WE to know where the information was coming from?" will be the excuse when this gets even uglier.