7 ms·

Understand the intent behind the bill. Wouldn't the bill be closer to effectiveness if it banned corporations from selling to any government and not only the U

by klvino 5y ago

Understand the intent behind the bill. Wouldn't the bill be closer to effectiveness if it banned corporations from selling to any government and not only the US government? By only banning the "US government" in the "purchase" of the data, it doesn't prevent acquiring the same data from another governmental body (Canada buys the data and shares with US Intelligence community, suddenly & mysteriously trade relations with Canada improve). So many loopholes, the bill becomes 'feel good' legislation instead of effective legislation.

xxpor 5y ago
I'm not sure it'd be constitutional for congress to ban selling something to a state government if the goods aren't themselves illegal
- cfqycwz 5y ago
  Not a lawyer but I think this would be constitutional in the same way that international sanctions are constitutional. The regulation of interstate and foreign commerce is an enumerated power given to congress and usually interpreted pretty broadly.
  - xxpor 5y ago
    That's right, but a company in a state selling to a state gov isn't engaging in interstate commerce. Maybe SCOTUS will use the cockamamie "but the market is nationwide so it still affects it" excuse but normally...
    - willcipriano 5y ago
      Wickard v. Filburn pretty much ended the idea of any real limitations in regards to calling something interstate commerce: "An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The US government had established limits on wheat production, based on the acreage owned by a farmer, to stabilize wheat prices and supplies. Filburn grew more than was permitted and so was ordered to pay a penalty. In response, he said that because his wheat was not sold, it could not be regulated as commerce, let alone 'interstate" commerce'..." Roscoe lost. https://en.m.wikipedia.org/wiki/Wickard_v._Filburn https://en.m.wikipedia.org/wiki/Wickard_v._Filburn
      - dragonwriter 5y ago
        > Wickard v. Filburn pretty much ended limitations in regards to interstate commerce. It did not, illustrated by among others, US v. Lopez. https://www.oyez.org/cases/1994/93-1260 https://www.oyez.org/cases/1994/93-1260
        willcipriano 5y ago
        How would they claim this isn't a economic activity?
    - dragonwriter 5y ago
      > That's right, but a company in a state selling to a state gov isn't engaging in interstate commerce. A company commercially gathering data that is not exclusively limited to data on in-state activities of in-state residents from (transitively) exclusively in-state sources, and selling it, is engaging in interstate commerce.
    - djbebs 5y ago
      If growing your own wheat for your own consumption is under the commerce clause so is every other economic activity
- yazaddaruvala 5y ago
  Wouldn't you just do an export ban on that "product"? I'm not a lawyer, but as I understand it there is no constitutional limitation. A relatively recent example[0], although maybe congress/POTUS require extenuating circumstances to get around the constitution? [0] https://www.fema.gov/fact-sheet/allocation-rule-personal-protective-equipment-exports https://www.fema.gov/fact-sheet/allocation-rule-personal-pro...
- lvs 5y ago
  Export controls. Interstate commerce. There's plenty of precedent for federal statute regulating international and interstate commerce.
  - tastyfreeze 5y ago
    Precedent isn't necessary when that is one of the federal government's few enumerated powers.
    - lvs 5y ago
      I understand you're being pedantic, but that's actually false.
- stevenicr 5y ago
  Also make it so selling / giving access to location data without explicit opt-in consent, along with notification to users if their data was accessed / rented / sold / used in a thing that others had access to.. basic transparency should be added as well imho. that could make some of 'the goods' illegal. and no I don't think t-mobile's recent email about privacy changes should count as opted in - I know the other users of the plans did not even get such an email also.
- NwtnsMthd 5y ago
  ITAR restrictions come to mind but I'm not sure if they're the same. For example, if I were to produce a gyroscope with sufficient accuracy the U.S. government can legally prevent me from selling it to foreign entities. Sure my product has excellent civil uses but it can also be used in weaponry (e.g. missiles). Data may have similar implications but I've never thought about this in depth.
- fallingknife 5y ago
  Potentially not if the entity was based only in that state, only collecting data on residents of that state, and only then when those residents were physically located in that state. So basically a situation that would never exist.
- stjohnswarts 5y ago
  Of course it is, it's pretty easy to present it as a process that should require a warrant because of the 4th amendment.
gentleman11 5y ago
Speaking of loopholes, does this affect border control agencies? I read that they can sort of do what they like within x miles of a border
- Black101 5y ago
  They have a lot of freedom 100 miles inside the border, and pretty much all of Florida is covered by this 100 mile non-sense and probably at least half of California: https://www.aclu.org/know-your-rights/border-zone/ https://www.aclu.org/know-your-rights/border-zone/
  - jcranmer 5y ago
    FWIW, that map isn't accurate. The border starts from the boundary of international waters, not the coastline itself, which cuts out a few areas (most notably Chicago and DC, as Lake Michigan and the Chesapeake Bay are no longer the starting point). (I haven't seen the ACLU provide any legal citation to the claim that it starts from the coastline.)
    - coliveira 5y ago
      This is not the interpretation given by enforcement agencies, it seems: https://www.bloomberg.com/news/articles/2018-05-14/mapping-who-lives-in-border-patrol-s-100-mile-zone https://www.bloomberg.com/news/articles/2018-05-14/mapping-w... Maybe what you say was the origina intent, but we know how the enforcement agencies love to reinterpret the laws to their advantage.
      - jcranmer 5y ago
        I looked into the case a touch more (see https://www.courtlistener.com/docket/6106095/michigan-immigrant-rights-center-v-department-of-homeland-security/ https://www.courtlistener.com/docket/6106095/michigan-immigr...). The key relevance I see is https://www.courtlistener.com/recap/gov.uscourts.mied.316027/gov.uscourts.mied.316027.19.0.pdf https://www.courtlistener.com/recap/gov.uscourts.mied.316027... (which includes the CBP's response to the allegations of the 100-mile border being counted from the coastline), where the CBP sort of denies that this is the case. It also sort of doesn't deny it, but this can very easily be a case of "we don't want to stake out a position in legal documents if we don't have to" (which is not an unreasonable thing for a lawyer to do whether the ACLU's claim is right or wrong).
Black101 5y ago
> Wouldn't the bill be closer to effectiveness if it banned corporations from selling to any government They should just ban them from selling it to anyone. Otherwise, they can buy the information from a homeless Russian?
lvs 5y ago
I doubt the limitation is lost on Wyden et al, but there is a political barrier to getting a bill like this passed at all. It's a lot more symbolic to introduce a bill with no chance in hell of passing the Senate than to introduce one that has at least a fighting shot. That is the piecemeal and practical nature of the legislative process. It will be more achievable to get Senate votes to constrain the government's actions than to regulate business. Until there's a stronger shift in the political winds in favor of more robust regulation of the private sector data collection business, the probability of getting over the filibuster hurdle to pass a stronger bill is remote.
anigbrowl 5y ago
I'd imagine the intent is to require government to obtain a warrant prior to collecting location data.
- kevin_thibedeau 5y ago
  They won't regulate the data broker industry precisely because they don't want the warrantless data pipe to be cut off. Location tracking is just a small piece of the invasive activities going on.
slg 5y ago
>Wouldn't the bill be closer to effectiveness if it banned corporations from selling to any government and not only the US government? Why stop there? If this data is dangerous for governments to have it, why is it safe for corporations to have it? Why not have a bill banning the collection of this data or these specific use cases of already collected data? I don't understand why we should inherently trust corporations more than governments.
- deleted 5y ago
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- deleted 5y ago
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- roenxi 5y ago
  Mainly because 'the government' has all these people with guns and flak jackets that are perfectly happy to come after people proactively. If McDonalds maintained a SWAT team and was run by people known to bomb weddings in the pursuit of regional stability, I'd be worried about them having my location data too. But they're not going to so that, they're going to come up with a crooked scheme to feed me more burgers. The quality of the outcome is arguable, but the level of risk is much lower.
  - MikeUt 5y ago
    And if Amazon buys location data on union organizers and their contacts? If farming conglomerates buy environmentalists locations? If General Electric, or other military-industrial giants, buy anti-war activist locations? It won't stop at burgers.
  - austincheney 5y ago
    If I had to add up the number of times everybody I know offline (in the real world) has run into SWAT teams that massive number is still 0. So to me the risk of danger by SWAT teams is low.
    - smeej 5y ago

by klvino 5y ago

xxpor 5y ago

I'm not sure it'd be constitutional for congress to ban selling something to a state government if the goods aren't themselves illegal

cfqycwz 5y ago
Not a lawyer but I think this would be constitutional in the same way that international sanctions are constitutional. The regulation of interstate and foreign commerce is an enumerated power given to congress and usually interpreted pretty broadly.
- xxpor 5y ago
  That's right, but a company in a state selling to a state gov isn't engaging in interstate commerce. Maybe SCOTUS will use the cockamamie "but the market is nationwide so it still affects it" excuse but normally...
  - willcipriano 5y ago
    Wickard v. Filburn pretty much ended the idea of any real limitations in regards to calling something interstate commerce: "An Ohio farmer, Roscoe Filburn, was growing wheat to feed animals on his own farm. The US government had established limits on wheat production, based on the acreage owned by a farmer, to stabilize wheat prices and supplies. Filburn grew more than was permitted and so was ordered to pay a penalty. In response, he said that because his wheat was not sold, it could not be regulated as commerce, let alone 'interstate" commerce'..." Roscoe lost. https://en.m.wikipedia.org/wiki/Wickard_v._Filburn https://en.m.wikipedia.org/wiki/Wickard_v._Filburn
    - dragonwriter 5y ago
      > Wickard v. Filburn pretty much ended limitations in regards to interstate commerce. It did not, illustrated by among others, US v. Lopez. https://www.oyez.org/cases/1994/93-1260 https://www.oyez.org/cases/1994/93-1260
      - willcipriano 5y ago
        How would they claim this isn't a economic activity?
  - dragonwriter 5y ago
    > That's right, but a company in a state selling to a state gov isn't engaging in interstate commerce. A company commercially gathering data that is not exclusively limited to data on in-state activities of in-state residents from (transitively) exclusively in-state sources, and selling it, is engaging in interstate commerce.
  - djbebs 5y ago
    If growing your own wheat for your own consumption is under the commerce clause so is every other economic activity
yazaddaruvala 5y ago
Wouldn't you just do an export ban on that "product"? I'm not a lawyer, but as I understand it there is no constitutional limitation. A relatively recent example[0], although maybe congress/POTUS require extenuating circumstances to get around the constitution? [0] https://www.fema.gov/fact-sheet/allocation-rule-personal-protective-equipment-exports https://www.fema.gov/fact-sheet/allocation-rule-personal-pro...
lvs 5y ago
Export controls. Interstate commerce. There's plenty of precedent for federal statute regulating international and interstate commerce.
- tastyfreeze 5y ago
  Precedent isn't necessary when that is one of the federal government's few enumerated powers.
  - lvs 5y ago
    I understand you're being pedantic, but that's actually false.
stevenicr 5y ago
Also make it so selling / giving access to location data without explicit opt-in consent, along with notification to users if their data was accessed / rented / sold / used in a thing that others had access to.. basic transparency should be added as well imho. that could make some of 'the goods' illegal. and no I don't think t-mobile's recent email about privacy changes should count as opted in - I know the other users of the plans did not even get such an email also.
NwtnsMthd 5y ago
ITAR restrictions come to mind but I'm not sure if they're the same. For example, if I were to produce a gyroscope with sufficient accuracy the U.S. government can legally prevent me from selling it to foreign entities. Sure my product has excellent civil uses but it can also be used in weaponry (e.g. missiles). Data may have similar implications but I've never thought about this in depth.
fallingknife 5y ago
Potentially not if the entity was based only in that state, only collecting data on residents of that state, and only then when those residents were physically located in that state. So basically a situation that would never exist.
stjohnswarts 5y ago
Of course it is, it's pretty easy to present it as a process that should require a warrant because of the 4th amendment.

gentleman11 5y ago

Speaking of loopholes, does this affect border control agencies? I read that they can sort of do what they like within x miles of a border

Black101 5y ago
They have a lot of freedom 100 miles inside the border, and pretty much all of Florida is covered by this 100 mile non-sense and probably at least half of California: https://www.aclu.org/know-your-rights/border-zone/ https://www.aclu.org/know-your-rights/border-zone/
- jcranmer 5y ago
  FWIW, that map isn't accurate. The border starts from the boundary of international waters, not the coastline itself, which cuts out a few areas (most notably Chicago and DC, as Lake Michigan and the Chesapeake Bay are no longer the starting point). (I haven't seen the ACLU provide any legal citation to the claim that it starts from the coastline.)
  - coliveira 5y ago
    This is not the interpretation given by enforcement agencies, it seems: https://www.bloomberg.com/news/articles/2018-05-14/mapping-who-lives-in-border-patrol-s-100-mile-zone https://www.bloomberg.com/news/articles/2018-05-14/mapping-w... Maybe what you say was the origina intent, but we know how the enforcement agencies love to reinterpret the laws to their advantage.
    - jcranmer 5y ago
      I looked into the case a touch more (see https://www.courtlistener.com/docket/6106095/michigan-immigrant-rights-center-v-department-of-homeland-security/ https://www.courtlistener.com/docket/6106095/michigan-immigr...). The key relevance I see is https://www.courtlistener.com/recap/gov.uscourts.mied.316027/gov.uscourts.mied.316027.19.0.pdf https://www.courtlistener.com/recap/gov.uscourts.mied.316027... (which includes the CBP's response to the allegations of the 100-mile border being counted from the coastline), where the CBP sort of denies that this is the case. It also sort of doesn't deny it, but this can very easily be a case of "we don't want to stake out a position in legal documents if we don't have to" (which is not an unreasonable thing for a lawyer to do whether the ACLU's claim is right or wrong).

Black101 5y ago

> Wouldn't the bill be closer to effectiveness if it banned corporations from selling to any government They should just ban them from selling it to anyone. Otherwise, they can buy the information from a homeless Russian?

lvs 5y ago

I doubt the limitation is lost on Wyden et al, but there is a political barrier to getting a bill like this passed at all. It's a lot more symbolic to introduce a bill with no chance in hell of passing the Senate than to introduce one that has at least a fighting shot. That is the piecemeal and practical nature of the legislative process. It will be more achievable to get Senate votes to constrain the government's actions than to regulate business. Until there's a stronger shift in the political winds in favor of more robust regulation of the private sector data collection business, the probability of getting over the filibuster hurdle to pass a stronger bill is remote.

anigbrowl 5y ago

I'd imagine the intent is to require government to obtain a warrant prior to collecting location data.

kevin_thibedeau 5y ago
They won't regulate the data broker industry precisely because they don't want the warrantless data pipe to be cut off. Location tracking is just a small piece of the invasive activities going on.

slg 5y ago

>Wouldn't the bill be closer to effectiveness if it banned corporations from selling to any government and not only the US government? Why stop there? If this data is dangerous for governments to have it, why is it safe for corporations to have it? Why not have a bill banning the collection of this data or these specific use cases of already collected data? I don't understand why we should inherently trust corporations more than governments.

deleted 5y ago
[deleted]
deleted 5y ago
[deleted]
roenxi 5y ago
Mainly because 'the government' has all these people with guns and flak jackets that are perfectly happy to come after people proactively. If McDonalds maintained a SWAT team and was run by people known to bomb weddings in the pursuit of regional stability, I'd be worried about them having my location data too. But they're not going to so that, they're going to come up with a crooked scheme to feed me more burgers. The quality of the outcome is arguable, but the level of risk is much lower.
- MikeUt 5y ago
  And if Amazon buys location data on union organizers and their contacts? If farming conglomerates buy environmentalists locations? If General Electric, or other military-industrial giants, buy anti-war activist locations? It won't stop at burgers.
- austincheney 5y ago
  If I had to add up the number of times everybody I know offline (in the real world) has run into SWAT teams that massive number is still 0. So to me the risk of danger by SWAT teams is low.
  - smeej 5y ago