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‘Serious Matter’

Durbin Open to Banning FBI From Buying Consumer Data

The FBI’s circumvention of court orders by purchasing cellphone data "violates the spirit of the Constitution,” Senate Judiciary Committee Chairman Dick Durbin, D-Ill., told us Thursday.

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Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., are looking to Durbin to move their Fourth Amendment Is Not for Sale Act (S-1265) through committee. The House Judiciary Committee passed companion legislation last week (see 2307190049). The bill would ban law enforcement and intelligence agencies from buying consumer data from brokers without a warrant. “I want to take a look at it,” said Durbin. “It’s a serious matter.” The bill has more than 20 co-sponsors in the Senate, but Durbin hasn’t signed on.

Republicans questioned why intelligence agencies shouldn’t be allowed to buy public-facing data that anyone else can purchase. “If you say every commercial entity can buy this data, but the FBI can’t, that creates some concerns,” Sen. John Cornyn, R-Texas, told us. “If it’s publicly available information that would assist an investigation, I’d try and understand why that would be any different than you or I buying the same data,” said Sen. Thom Tillis, R-N.C.

Sens. Lindsey Graham, R-S.C., and John Kennedy, R-La., were more open to the legislation Thursday. Asked if there are concerns about the FBI buying data without a warrant, Kennedy said, “Of course. I need to learn more about it, and I haven’t looked at the bill, but of course I do. We have this thing called the Fourth Amendment ... and I’m rather fond of it.” Graham said he wants to talk to the FBI first: “What are you doing and why? But my instincts would be to make that illegal.” If Congress has to “pass legislation to get the FBI protecting individual privacy, we need to pass it,” said Sen. Chuck Grassley, R-Iowa.

Wyden told us he spoke previously with Durbin and Senate Majority Leader Chuck Schumer, D-N.Y., about the importance of the bill. The House Judiciary Committee vote shows privacy is picking up “a lot of momentum,” he said. He noted the bill’s support from House Judiciary Committee Chairman Jim Jordan, R-Ohio, and ranking member Jerry Nadler, D-N.Y., plus Reps. Zoe Lofgren, D-Calif., and Darrell Issa, R-Calif. “We’ve got a great group of people that are real serious about policy,” said Wyden. Recent declassifications from the intelligence community (see 2305190067) show “everyone is selling everything in sight.”

We’re pushing for it,” Paul told us when asked about the potential for the Senate Judiciary Committee to move the bill. “We’ll see.” Having Jordan’s support in the House is a “big help,” he said. The bill is supported by the American Civil Liberties Union, Americans for Prosperity, Center for Democracy and Technology, Demand Progress, Electronic Frontier Foundation and Public Knowledge.