WASHINGTON – Weeks after federal lawmakers voted to expand the power of the U.S. government to surveil its citizens, legislation is moving through Congress to limit federal agencies’ ability to gather private information about the public another way — by buying it.

Companies called data brokers, which gather personal information then sell dossiers about private citizens, have bloomed in recent years, swelling to become an industry valued at hundreds of billions of dollars.

The House of Representatives passed a bill (HR 4639) on April 18 that would prohibit law enforcement or intelligence agencies from purchasing information from data brokers and prevent the use of such records as evidence in a trial, hearing or other legal proceeding.

New Jersey’s House members split their votes on the legislation, and while the Senate has yet to take it up, Republicans and Democrats in the chamber, including Sens. Cory Booker and Bob Menendez, have been critical of federal programs to gather citizens’ private digital data.

Data privacy has grown in recent years into an area of bipartisan compromise on Capitol Hill, largely between left-leaning Democrats and Republicans with libertarian approaches to policymaking.

Four New Jersey lawmakers — Democrats Bonnie Watson Coleman (D-12th) and Frank Pallone (D-6th) as well as Republicans Jeff Van Drew (R-2nd) and Chris Smith (R-4th) — voted last month against separate legislation that would expand a U.S. surveillance program designed to gather information about foreign nationals.

Expansion of FISA

By expanding that program — called Section 702 of the Foreign Intelligence Surveillance Act, or FISA — Congress gave more power to U.S. police and intelligence agencies like the FBI to demand information about private U.S. citizens if they’ve been in contact with foreigners.

That program has also been abused, including to surveil protesters against police violence in 2020, a U.S. senator and state judge, according to a nonpartisan audit published in September.

Before Congress voted to expand that program, House members deadlocked on a bipartisan amendment to require that the U.S. government get a warrant before accessing Americans’ private data.

Police and intelligence departments can sidestep warrant requirements in their day-to-day work by buying information from data brokers.

The House voted 212-212 on that amendment, with the same four New Jersey members — Watson Coleman, Pallone, Van Drew and Smith — voting in favor and the rest, except for the late Rep. Donald Payne (D-10th), who died April 24 after weeks of hospitalization, voting against the warrant requirement.

Police and intelligence departments can sidestep warrant requirements in their day-to-day work by buying information from data brokers.

That process “enables our own devices to be turned against us,” Sumayyah Waheed, senior policy counsel at Muslim Advocates, a civil-rights advocacy group, said in a phone interview, referring to cellphones and other electronic items.

The data-broker legislation was originally supposed to part of the broader FISA legislation that broadened the reach of the Section 702 program, Waheed said.

That bill cleared the House on April 18 in a 219-199 vote, with 123 Republicans and 96 Democrats voting in favor — an unusual mix in a sharply divided chamber. Pallone, Van Drew and Watson Coleman voted in favor and the rest of the New Jersey delegation voted against.

Tough battle in Senate

Passage in the Senate remains a higher hurdle, due to opposition from members of both parties and the administration of President Joe Biden.

“It generally would prohibit the Intelligence Community and law enforcement from obtaining certain commercially available information — subject only to narrow, unworkable exceptions,” the White House budget office said in a statement last month. “It does not affect the ability of foreign adversaries or the private sector to obtain and use the same information, thus negating any privacy benefit to U.S. persons while threatening America’s national security.”

Sen. Cory Booker was one of four Democrats in Congress to call for an investigation of Apple and Google for ‘unfair and deceptive practices by enabling the collection and sale of hundreds of millions of mobile phone users’ personal data.’

Police advocacy groups, like the International Association of Chiefs of Police and the Fraternal Order of Police, also oppose the bill, saying it would limit officers from using mapping data in their work.

“Geolocation data is an invaluable tool in the ability of police agencies to prevent and solve crimes, locate suspects, and gather crucial evidence,” the groups said in recent letter to the Democratic and Republican leaders in the Senate. “Without access to this type of data, investigators will not be able to ‘connect the dots’ — to see patterns and establish links between the crime and the perpetrator,”

If the Senate does vote on the data-broker bill, Menendez’ recent voting record suggests he would support it. Last month, he voted for an amendment that would have attached the bill to a broader intelligence agency bill.

Other concerns

Booker has also raised concerns about the influence of data brokers — in particular about location data on people who visit abortion clinics.

In May 2022, a month before the Supreme Court voted to revoke the constitutional right to abortion, Booker and other Senate Democrats wrote two data brokers, demanding information about the companies’ data collection patterns about people who visit abortion clinics.

Booker was also one of four Democrats in Congress to call for the Federal Trade Commission to investigate Apple and Google for “unfair and deceptive practices by enabling the collection and sale of hundreds of millions of mobile phone users’ personal data.”

In a letter to Lina Khan, chairwoman of the government’s independent consumer protection agency, the lawmakers said the two technology giants have not warned the public about how their data might be sold and used.

“By failing to warn consumers about the predictable harms that would result by using their phones with the default settings that these companies chose, Apple and Google enabled governments and private actors to exploit advertising tracking systems for their own surveillance and exposed hundreds of millions of Americans to serious privacy harms,” the letter read in part.

— Chart by Genesis Obando