Chairman Nadler Statement for "Digital Dragnets: Examining the Government's Access to Your Personal Data"

Hearing

Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) delivered the following opening statement, as prepared, during a full committee hearing on "Digital Dragnets: Examining the Government's Access to Your Personal Data":

"Data is often called the "oil of the 21st Century," and the rush to participate in the market for data has made the tracking of our personal information an inescapable part of daily life. From web hosts and cell phones to service providers and mobile applications, companies that provide online services are part of an ever-growing industry around the collection and commodification of our data.

"Private companies now compete with each other to manage these enormous troves of information--and this trend alone presents significant privacy concerns. But it is even more troubling that law enforcement and intelligence agencies at all levels of government are purchasing this data for their own use, often sidestepping protections designed to limit the direct acquisition of the exact same information.

"Simply put, law enforcement and intelligence agencies are now able to obtain vast quantities of information that would otherwise be unavailable to them without a warrant. Your physical location, your personal habits, your internet searches, your likes and dislikes, and your politics--to name just a few private concerns--are all available and accessible to the government.

"The easy availability of personal data to the government poses significant risks to minorities, to those with unpopular views, to our system of justice, and ultimately, to the stability of our democracy itself. Our founders understood what a country without protection from unwarranted search and seizure looks like. They knew that to protect the citizens of the fledgling United States of America from the government it was creating, it was essential to provide basic guidelines for law enforcement to follow, which they did in the Fourth Amendment.

"But recent advancements have allowed the technology of data collection to get ahead of the laws protecting our privacy. This overreach is clear from recent scandals that include the pervasive use of geolocation data to track peaceful protestors, the sweeping surveillance of thousands of devices to identify just two suspects, and the purchase of data from prayer apps and dating apps.

"What links these incidents and others together is a disturbing trend: the increasing reliance of law enforcement on massive data sets with little consideration for due process. It is--plain and simple--the warrantless surveillance of everyday Americans. And it may have dire consequences.

"For example, women across the country who wonder what America will look like in the wake of the Dobbs decision are at particular risk for this data surveillance. In states where abortion is now a crime, law enforcement can use available data to keep track of who searches online for the words "miscarriage" or "abortion."
They can purchase geolocation data to monitor which phones travel out of state to go to a medical provider. They can access the data from tracking apps, or purchase integrated data profiles, to see or even predict if, and when, a woman may be pregnant or may be likely to seek an abortion.

"The more we learn, the more we realize that there are few measures in place to shield our digital footprints from the hands of government agencies. Every person sitting in this room likely has a cell phone with them today that is tracking location, use, and communications to and from the device. Private companies will sweep up that information, package it, and sell it for uses ranging from the most benign microtargeted advertisement to the most invasive digital profile.

"Law enforcement and intelligence agencies clearly have an interest in those commercial products--especially where due process concerns would make it difficult for those agencies to acquire the data directly.

"Although some companies claim to sell only anonymized data, or never to sell to the government, experts agree that both guarantees are empty promises. When there is no constraint on the future use or sale of individual data, companies have no control over reidentification of that data and no control over where it goes next.

"Although we do not know the full scope of the federal government's access to and use of these commercial products, some government contracts give us a sense of scale. For example, ICE, the DEA, and the FBI, each contract with a data broker that sources location data from over 80,000 apps.

"The products are so precise that officers can track individuals within specific homes and businesses--again, tracking your location over time, within inches, without any due process whatsoever.

"And the problem is not limited to the purchase of data. So-called "reverse search warrants" allow law enforcement agencies to make broad requests for a company's data--such as every person who searched for a specific term, or every person who was in a particular place over some period of time--totally upending traditional notions of a narrowly-tailored warrant, based on probable cause.

"The end result is that, just by going about your daily life, your data may be swept up in--and make you the subject of--a criminal investigation. Investigations this broad and baseless present significant risk of mistaken identity and have led to erroneous arrest in many cases.

"If law enforcement and intelligence agencies remain unrestrained in their ability to purchase this data, our right to privacy will be, at best, illusory. I look forward to hearing from our distinguished witnesses about how pervasive this problem is, and how we can best rebalance the law to protect our liberty."

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