​Washington seemed to have reached a tipping point last week in the surveillance reform debate. Reformers are taking heart from the receptivity of the Trump Administration and its nominees to surveillance reform, while defenders of the surveillance status quo are doubling down on the untenable position of opposing all reform.
 
Those defenders likely agree with The Wall Street Journal, whose editorial board found the removal of Rep. Mike Turner, Chairman of the House Intelligence Committee, a “bad message about the need for public honesty about threats to U.S. security.” In confirmation hearings of Trump nominees several senators created a false dichotomy when describing the fate of Section 702 – the Foreign Intelligence Surveillance Act authority that allows federal agencies to spy on foreign threats on foreign soil, but abused to spy on many Americans in domestic cases. The choice these champions of the intelligence community offered was between two extremes. One would be to let Section 702’s authority lapse when it comes up for renewal in 2026. The other would be to leave it in place, unchanged. In other words, they are saying our only choice is to either expose the American homeland to terrorists or loyally affirm the surveillance status quo.
 
But something else happened last week as well. Nuance and more openness to debate seemed to be breaking through the noise, and not a minute too soon.
 
While the new House Intelligence Chairman Rick Crawford (R-AR) is not known as a surveillance reformer, civil liberties groups are hopeful he will allow a balanced debate to take place. We look forward to Chairman Crawford listening to our objections about the government’s abuses of Section 702 and the separate expansion of “electronic communications service providers” with a legal duty to engage in domestic spying. Chairman Crawford surely knows that many on the Hill are still smarting from the way some colleagues strong-armed them into blocking a promised fix to a law mandating that virtually every business, organization and house of worship with free Wi-Fi be obligated to spy on their customers for the NSA.
 
Chairman Crawford will also be told that reformers are pushing back on Section 702, not because we want to protect foreigners – who have no Fourth Amendment rights – but because we want to protect American citizens from warrantless FBI surveillance in ordinary domestic investigations. Consider that as recently as 2022, the FBI had accessed the communications of Americans garnered via Section 702 more than 200,000 times. President Trump, having been victimized himself through another FISA authority during the Carter Page affair, seems to be nominating Cabinet officers who agree that the FBI has been out-of-control.
 
Sen. Mike Lee (R-UT) made this clear when he was interviewed by Laura Ingraham on Fox News to discuss the confirmation testimony of Pam Bondi, President Trump’s AG nominee. Sen. Lee said of Bondi:
 
“She understands the Fourth Amendment. She understands that the U.S. government can’t go after your personal effects, your papers, your private communications, without a warrant … backdoor warrantless searches under FISA 702 have become a problem.
 
“We’re told over and over again by FBI Directors and attorneys general, ‘Don’t worry about it. These aren’t the [violations] you’re looking for. We have procedures to handle this.’ And they’re lying. Pam Bondi went on record today, saying ‘We shouldn’t do that.’ And I am thrilled that she did.”
 
The dust is still settling from an earthquake election, the replacement of a House Intelligence Committee chairman, and a likely attorney general affirming that the backdoor search loophole of Section 702 must be addressed. Perhaps now we can have a mature discussion about surveillance reform.
 
If we do, Congress can add guardrails to Section 702 to end the FBI’s warrantless surveillance of Americans while keeping a strong national security tool that protects the American homeland. Perhaps the stars are lining up for a deal.

​The unanimous U.S. Supreme Court opinion upholding the forced sale of TikTok is a necessary first step toward reining in the wholesale exploitation of Americans’ data. But it is only a first step. Gaping vulnerabilities remain.
 
Let’s first consider this ruling, its reasoning and implications:
 
The Supreme Court’s Thinking:
TikTok is owned by ByteDance, a Chinese company that is obligated to share all of its data with the regime in Beijing. Consider that any data collected by TikTok is ready-made material for blackmail, corporate espionage, and weaponization by the Chinese state.
 
What’s at risk, specifically? Just ask the Court, which affirmed that TikTok’s “data collection practices extend to age, phone number, precise location, internet address, device used, phone contacts, social network connections, the content of private messages sent through the application, and videos watched.”
 
But the issue is even bigger. In his concurrence, Justice Neil Gorsuch wrote: “The record before us establishes that TikTok mines data both from TikTok users and about millions of others who do not consent to share their information … TikTok can access ‘any data’ stored in a consenting user’s ‘contact list’ – including names, photos, and other personal information about unconsenting third parties.”
 
It is for these reasons that the Court unanimously found that “the Act is sufficiently tailored to address the Government’s interest in preventing a foreign adversary from collecting vast swaths of sensitive data about the 170 million of U.S. persons who use TikTok.”
 
The Court’s Respect for the First Amendment
Justice Gorsuch’s concurrence showed great deference to the First Amendment. “Too often in recent years,” he wrote, “the government has sought to censor disfavored speech online, as if the internet were somehow exempt from the full sweep of the First Amendment.”
 
Justice Gorsuch noted that in this case the Court “rightly refrains from endorsing the government’s asserted interest in preventing ‘the covert manipulation of content’ as a ‘justification for the law before us … One man’s ‘covert content manipulation’ is another’s ‘editorial discretion.’ Journalists, publishers, and speakers of all kinds routinely make less-than-transparent judgments about what stories to tell and how to tell them.”
 
As we’ve written before, it would be a violation of the First Amendment to close a newspaper that ran Chinese disinformation and propaganda. In that instance, policymakers would have to rely both on other media to expose that newspaper and on the good sense of the American people. But if a newspaper came with newsprint that seeped into the fingertips of readers to release a carcinogen, closure would be lawful, necessary, and proper. The Protecting Americans from Foreign Adversary Controlled Applications Act is a law in that vein – and the Court was right to uphold it.
 
Justice Gorsuch also praises the Court for declining to consider the government’s classified evidence, which was withheld from TikTok and its lawyers. He wrote: “Efforts to inject secret evidence into judicial proceedings present obvious constitutional concerns.”
 
Americans Still Data-Naked Before the World
The People’s Republic of China is a unique threat to Americans’ privacy. And it is far from contained. Outgoing FBI Director Christopher Wray has warned that Chinese-controlled shell companies can also gain access to our data.
 
But China is far from the only threat. As a foreign entity, one thing China cannot do is smash your door open with a battering ram at 4 a.m., pull you out of bed and prosecute you on the basis of evidence that you will never see and that will never be presented in court.
 
But U.S. domestic law enforcement can do that. The FBI does this by purchasing your personal information from third-party data brokers and examining it without a warrant. This is the very same “backdoor loophole” acknowledged by Pam Bondi in her confirmation hearing as attorney general. Other agencies, ranging from the IRS to the DEA to the Department of Homeland Security are also purchasing and using our data – information that is often more personal than a diary.
 
Today’s Court ruling suggests there are next steps to protecting Americans’ privacy. One would be to take Justice Gorsuch’s constitutional concerns about injecting secret evidence into judicial proceedings and applying them to the State Secrets privilege. That insidious, time-weary doctrine has long prevented defendants from knowing the evidence against them when gleaned by government surveillance.
 
The Bottom Line
The upholding of the TikTok law mandating a sale was a good first step toward securing digital privacy for Americans. But much more needs to be done to protect Americans. Another needed action would be final passage of the Fourth Amendment Is Not for Sale Act, which would require U.S. federal agencies to obtain a warrant before inspecting our purchased data. The House passed this legislation in 2024. It should pass this Congress and go to the president’s desk for signature this year.
 
Today’s ruling is a fine start. But we’ve got a long way to go to restore privacy and the Fourth Amendment to American life.

​Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor to the Project for Privacy and Surveillance Accountability (PPSA) made this statement on Friday about efforts to repeal the Corporate Transparency Act:
 
“In recent years we’ve seen a dramatic expansion of financial surveillance of the American people. The Securities and Exchange Commission instituted a database called the Consolidated Audit Trail that grants more than 3,000 bureaucrats access to every American’s private trades and personal information. We’ve seen, thanks to investigations by the House Judiciary Committee, how the U.S. Treasury Department’s Financial Crimes Enforcement Network engaged in the warrantless collection of Americans’ personal transactions from banks.
 
“These acts of surveillance, based on no statute, can be wound back by President-elect Trump’s senior appointees. One act of brazen surveillance, however, will require Congress to undo a law it passed in 2021 – the Corporate Transparency Act. This law now requires the owners of 32 million small businesses to file the details of the ownership of their companies or face $10,000 in fines and up to two years in prison.
 
“As PPSA attested in our amicus brief to the Eleventh Circuit, this requirement is incompatible with America’s Founding-era ideals and the Fourth Amendment. That is why PPSA salutes the leadership of Senator Tommy Tuberville and Representative Warren Davidson who are sponsoring legislation to repeal the Corporate Transparency Act. Quick passage for President Trump’s signature would be a strong and early sign that the 119th Congress means business. And it would be a good start on rolling back the financial surveillance state.”

​John Ratcliffe slid though his confirmation hearing for his nomination as Director of the Central Intelligence Agency on a greased toboggan. Along the way, he offered encouraging glimpses into his thinking about surveillance reform.
 
Sen. James Lankford (R-OK) spoke up for Section 702, the Foreign Intelligence Surveillance Act authority that allows federal agencies to surveil foreign threats on foreign soil. John Ratcliffe said that Section 702 is “an indispensable national security tool” and noted that information gleaned from programs authorized by that law often comprises half of the president’s daily intelligence briefing. But Ratcliffe also acknowledged that Section 702 “can be abused and that we must do everything we can to make sure it has appropriate safeguards.” Ratcliffe told the Senate Select Committee on Intelligence that surveillance “can’t come at the expense of Americans’ civil liberties.”
 
Sen. John Cornyn (R-TX) said that Ratcliffe in a private conversation had observed that surveillance authorities are somewhat like steak knives in the kitchen, useful but dangerous in the wrong hands. The problem in the past, the senator from Texas said, was a “lack of trust in people who’ve had access to those tools.” That seemed to be a reference to the FBI, which in the past had used Section 702 powers to vacuum up the communications of more than 3.4 million Americans.
 
There were also some irritating moments for surveillance reformers in the hearing. Several senators alluded to all critics of Section 702 as wanting to repeal that authority and expose Americans to terrorists and spies. They did so without acknowledging that it is possible to criticize and reform that law without ending it.
 
Under questioning from Sen. Michael Bennet (D-CO), John Ratcliffe spoke of his unique experience as a former House Member who sat on the Judiciary Committee and later the House Intelligence Committee and then served in the executive branch as Director of National Intelligence (DNI).
 
Ratcliffe said that he was surprised that despite having served in the legislative branch on an oversight committee of the intelligence community “there was so much intelligence I learned for the first time as a DNI that I knew no Member of Congress was aware of. And I think that sort of speaks to my approach and understanding that I take seriously the obligation that I will have to keep this committee fully informed on intelligence issues.”
 
John Ratcliffe told the oversight committee point blank that there is much it does not know but should. Perhaps that admission will spur senators to dig deeper and conduct stronger supervision of the intelligence community.

​A jury in London’s Old Bailey criminal court heard prosecutors last week make a case against a Bulgarian man who had stored enough spy equipment in rented rooms in England to fill the Washington, D.C., Spy Museum. The rooms also contained two devices that should be of interest to any American interested in protecting privacy.
 
Among the thousands of paper and digital exhibits shown to the jury were pendant necklaces, soda bottles, water bottles, and a cap with cameras inside, as well as a device to clone car keys. These surveillance tech devices were allegedly held by 46-year-old Orlin Roussev in a guesthouse at a resort on the east coast of England.
 
Roussev is charged with being part of a Russian plot to employ two devices commonly used by the FBI and state and local law enforcement in domestic cases. Among the items prosecutors say were found were two international mobile subscriber identity, or IMSI, devices worth £160,000. These devices, popularly known as “stingrays” are, in essence, fake cell towers that can pull data out of a nearby cellphone and use it to track its owner’s location. Roussev and several others are accused by British prosecutors of planning to go to Stuttgart, Germany, where Ukrainian soldiers are being trained to operate Patriot missile-defense batteries and to use stingrays to link to their personal phones.
 
The British government says these devices were to then be used to follow the Ukrainian soldiers back to Ukraine, locate them in the battlefield with their Patriot missiles, and target them for annihilation.
 
In a domestic context, stingrays can vacuum up the data and locations of a large number of civilian cellphones in a geofenced area. PPSA has learned that local governments signed an agreement with the FBI that severely restricts what local police and prosecutors can reveal about the use of stingrays in a trial. The agreement’s boilerplate stipulates that if the agency “learns that a District Attorney, prosecutor, or a court” is considering releasing such information, the customer agency must “immediately notify the FBI in order to allow sufficient time for the FBI to intervene …”
 
Once the FBI gains warrantless access to your location and movements, it won’t act like the Russians do and fire an Oreshnik missile at you. But it can follow you everywhere you go, make a case against you in court, and no jury will ever know how this evidence was obtained.
 
Perhaps spies accused of acting for Russia might receive more respect for due process in London than an American targeted by a stingray in your hometown.

​As much as we oppose warrantless surveillance by the FBI, we acknowledge there is much to fear from foreign threats as well.
 
Outgoing FBI Director Christopher Wray’s interview with Scott Pelley on CBS’s 60 Minutes covered a lot of hot political territory, including Wray’s contentious relationship with President-elect Donald Trump. Regardless of your political leanings, however, you should be alarmed by what Director Wray said about China’s use of surveillance and malware to threaten the people of the United States.
 
Pelley reported that CBS has confirmed that China has been listening to the conversations of the two recent presidential candidates, President-elect Trump and Vice President Kamala Harris. Without naming names, Wray said that the FBI believes that the People’s Republic of China has “collected their content, the actual communications of those people.”
 
Wray doubled down on prior statements that China has stolen trillions of dollars’ worth of intellectual property from the United States over the years. China, he said, “has stolen more of American’s personal and corporate data than that of every nation, big or small.”
 
Wray’s words about Chinese malware were the most chilling. He said the greatest danger is the “Chinese government’s pre-positioning [malware] on American civilian critical infrastructure. To lie in wait on those networks to be in a position to wreak havoc and can inflict real-world harm at a time and place of their choosing.”
 
What areas are China targeting? Wray said:
 
“Things like water treatment plants. We’re talking about transportation systems. We’re talking about targeting of our energy sector, the electric grid, natural gas pipelines. And recently we’ve seen targeting of our telecommunications systems.”
 
The latter appeared to be a reference to reports in October that China gained access to AT&T, Lumen, and Verizon systems that the FBI uses for domestic wiretapping investigations. So China appears to be using the FBI itself for outsourcing its spying on Americans.
 
What would an all-out Chinese malware attack on the United States look like? It would look like the Middle Ages, at least for a while. No air travel. No water at the tap. No electricity, which would shut down gas pumps, which would eventually stop vehicular transportation. After the food trucks stop rolling, the squirrels in your backyard might start to look appealing.
 
There is a growing sense among foreign policy experts that a hybrid-war between the United States and China could occur this year, or within the next few years. It is for this reason that PPSA – which has never donned a tin foil hat – soberly advises you to go online or to a big box retail store and purchase several months’ worth of long-term emergency food supplies. You might also want to store water in clean, BPA-free plastic containers, refreshing them every six months. With any luck, these items will just gather dust in your attic, but they will be providing insurance every minute of the day.

​We are now entering the confirmation process of the Trump cabinet, which promises a mix of medieval trial by ordeal with the modern reality show. In the current episode, former Democratic Congresswoman Tulsi Gabbard is doing the rounds on Capitol Hill as she prepares for her confirmation hearings as President-elect Trump’s choice for Director of National Intelligence. Her situation is delicate. Gabbard cannot count on a vote from a single Senate Democrat. With a 53-seat Republican majority in the Senate, she cannot afford to lose Republicans, which includes a number of surveillance hawks.
 
For some of these Republicans, her stances in Congress have been problematic. When Gabbard served in Congress, she harshly criticized Section 702 of the Foreign Intelligence Surveillance Act (FISA) – the authority that allows federal agencies to surveil foreign threats located on foreign soil but is often used by our government to warrantlessly inspect Americans’ communications caught up in the National Security Agency’s global trawl. In 2017, Gabbard declared on the House floor:
 
“For years now the NSA has been collecting phone and online communications from everyday Americans from all across the country, defying the rights and liberties granted to us under the Fourth Amendment to the Constitution. The 2008 FISA Amendments, specifically Section 702, have led to massive government-led exploitation of personal privacy through the collection of Americans’ citizens’ emails. We need serious reforms that balance the protection of our civil liberties and rights through our Constitution and also keep the American people safe.”
 
In 2022, the Hawaii Democrat joined with Rep. Thomas Massie (R-KY) in co-sponsoring legislation to repeal the expansive surveillance authorities of the Bush-era Patriot Act. Gabbard justified this by saying that the intelligence community “has not been transparent or honest with the American people or even Congress about what they’ve been doing.” Gabbard was correct, the intelligence community has long played a whack-a-mole game with Congressional overseers, relying on rhetorical gamesmanship and shifting authorities to obfuscate their continued, warrantless surveillance of Americans.
 
As Gabbard now faces confirmation, Sen. James Lankford (R-OK) drew a line, saying on a Wall Street Journal podcast that Gabbard would need to reverse her opposition to Section 702 to win his vote. Gabbard responded:
 
“My prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI’s misuse of warrantless search powers on American citizens. Significant FISA reforms have been enacted since my time to address these issues.”
 
In this light, Gabbard’s 2020 legislation appears as a messaging bill meant as a shot across the bow of a deceitful intelligence community. At the same time we hope that Tulsi Gabbard doesn’t see the reforms added to Section 702 in the House last year, important as they are, as sufficient. Tightening the reporting requirements of the FBI on the number of times it searches or “queries” Americans’ communications in Section 702 databases is good, but it is no substitute for requiring probable cause warrants. Nor do declarations of support for the Fourth Amendment from the current director of national intelligence, Avril Haines, mean that the FBI will actually refrain from treating the Constitution as a dishrag.
 
Remember: The FBI has been caught using Section 702 foreign intelligence powers to prosecute people for “health care fraud,” “public corruption and bribery,” and other purely domestic cases. It surveilled 19,000 donors to a congressional campaign. It has surveilled a sitting Member of the House and a Senator, as well as a state judge and political groups. The FBI’s behavior is so out of line that it in 2019 it became the subject of a rare public rebuke by the secret FISA Court, which issued several opinions finding “widespread violations” by the FBI in its warrantless access of Americans’ data.
 
PPSA hopes that Tulsi Gabbard as Director of National Intelligence will bring a renewed and forthright focus on the need for an exacting adherence to the Fourth Amendment whenever the rights of Americans are implicated – as she so eloquently promised in this 2020 video.

​The proliferation of automated license plate recognition systems (ALPRs) is a boon for safer roadways. These networked cameras can help police spot a stolen car or track fleeing bank robbers with just a few clicks. These systems are growing in capability as the sheer numbers of these watchers, generating data networked and analyzed by artificial intelligence, seamlessly track anyone who drives or rides in a car.
 
Now a privacy advocate has demonstrated that ALPRs systems are leaky, easily accessed on private networks without authentication – and even prone to allow a stalker to stream someone’s travels online.
 
Jason Koebler of 404 Media reports that privacy advocate Matt Brown of Brown Fine Security easily turned license plate readers into streaming video. Without any logins or credentials, Brown was able to join the private networks collecting the video and data these cameras collect. Worse, he found that many of these cameras are misconfigured in a way that an Internet of Things (IoT) search engine can access them for online streaming – a dream-come-true for stalkers, creeps, corporate espionage artists, and perhaps government agencies. Will Freeman, who created an open-source map of U.S. ALPRs, told Koebler that he can write a script to map vehicles to set times and precise locations.
 
“So when a police department says there’s nothing to worry about unless you’re a criminal, there is,” Freeman told 404 Media.
 
Koebler reports that Motorola, the camera’s manufacturer, promised a fix when informed of these vulnerabilities. Given the liability risk, it is likely this particular technological vulnerability will soon be patched. The longer-term threat pertains to the ubiquity of ALPRs systems, which brings to mind Jospeh Stalin’s famous quip about his tanks – “quantity has a quality all its own.” The same is true with camera surveillance.
 
The first few cameras allowed police to catch scofflaws who ran red lights. Many cameras can be used to track people as they drive to political, religious, romantic, or journalistic encounters. Add AI into the mix, and you take the labor out of following journalist Alice on her way to meet with government insider and whistleblower Bob, or to determine which political donor is meeting with which advocacy group, or which public figure is providing the watcher with kompromat.
 
This capability will only grow more robust, reports Paige Gross of the Florida Phoenix, as IoT technologies create “smart cities” with interconnected webs to make roadways and sidewalks safer and the flow of vehicles and people more efficient. We may feel like we’re in a zone of privacy when we’re in our cars. But the Internet of Things is also transforming cities into places where anonymity and privacy are evaporating.
 
“As the technology becomes increasingly denser in our communities, and at a certain point you have like three of them on every block, it becomes the equivalent to tracking everybody by using GPS,” Jay Stanley of the ACLU told Gross. “That raises not only policy issues, but also constitutional issues.”
 
License plate readers are just one element of a surveillance state being knitted together, day by day. From purchases of our digital data by government agencies and corporations, to the self-reporting we make of our movements by carrying our cellphones, to our cars – which themselves are GPS devices – there is a growing integration of a network of networks to follow our movements, posts, and communications … in the land of the free and the thoroughly surveilled.
 
The need for lawmakers in Congress and the state capitals to set guardrails on these integrating technologies is growing more urgent by the day. Perhaps the best solution to many of these 21st century problems is to be found in a bit of 18th century software – the founders’ warrant requirement in the Fourth Amendment to the Constitution.

​The news that Apple has agreed to a preliminary $95 million settlement to resolve a lawsuit about secret recordings of consumers by its virtual assistant Siri presents us with more questions than answers.
 
This lawsuit began five years ago in the aftermath of a story in The Guardian reporting that less than 1 percent of daily “Hey Siri” activations were being analyzed to improve the virtual assistant and understand human diction. Contractors listened to short snippets of pseudonymous conversations. Along the way, contractors heard confidential medical information, drug deals, and couples having sex. One contractor told The Guardian that in one conversation “you can definitely hear a doctor and patient.”
 
The lawsuit Apple settled alleges that the company not only listened in on conversations but sold them to advertisers. Plaintiffs claim that casual mentions of Air Jordan sneakers and the Olive Garden restaurant triggered ads for these products. Another plaintiff alleges that a private conversation about a brand-name surgical treatment with a doctor triggered ads for that service in his social media feeds.
 
This is a scandal, if true. But we’re withholding judgment. One reason Apple’s valuation is the largest in the world is its commitment to privacy, which CEO Tim Cook calls “a fundamental human right.” In the settlement, in which trial lawyers are set to walk away with about one-third of the take, Apple refused to acknowledge wrongdoing. An Apple spokesman told Fox News, “Siri data has never been used to build marketing profiles and it has never been sold to anyone for any purpose.”
 
We want to believe Apple. Yet we have to say concerning all virtual assistants, we’ve noticed like everyone else a strange correlation between random mentions of products or vacation destinations and ads that pop up on our feeds. Experts chalk this down to cognitive bias, that we often search for these items or hit websites that provoke us to think about them and forget about it. Maybe. But this happens often enough, with very specific items, that it still makes us wonder about what Siri, Alexa, and the rest are taking in.
 
And if they are taking in our private conversations, are federal agencies also able to take them in as well?
 
We may learn more when the settlement goes to U.S. District Judge Jeffrey White for approval in a federal courtroom in Oakland next month. In meantime, try this: Sit next to Siri or Alexa, converse with a friend about Albanian beach vacations, and see what pops up in your feed.

​Christian Parenti, John Jay College professor of economics, has penned an intriguing, if somewhat mischievous piece in Compact that makes “The Left Case for Kash Patel.”
 
Parenti builds his appeal for liberal support of Patel, President-elect Trump’s nominee to head the FBI, by drawing on the long-time skepticism of the FBI by the left. This tradition harks back to Sen. Frank Church and his eponymous committee that revealed domestic spying by the federal government and the FBI’s scrutiny, sometimes bordering on persecution, of left-wing and liberal activists. Most notoriously, the FBI tried to provoke The Rev. Martin Luther King Jr. into committing suicide, and was involved in the Cook County police raid that is now largely seen as an assassination of radical activist Fred Hampton.
 
“But these days,” Parenti writes, “many leftists in good standing scoff at the very idea of a ‘deep state’ with the intelligence agencies at its heart.”
 
Parenti goes on to recount for his left-leaning readers conservative complaints about the FBI’s interference in the political process, beginning with the FBI’s use of political opposition research smears to persuade the Foreign Intelligence Surveillance Court (FISC) to issue four surveillance orders of Trump campaign aide Carter Page in 2016, and through him a presidential campaign. Parenti writes that the FBI “proceeded to launder accusations derived from” the Steele Report, which it knew was discredited, “through the press and the DC rumor mill and then treated the resulting rumors as if they were real intelligence.”
 
Parenti makes it clear that the FBI also worked for the better part of a year holding 30 meetings with social media companies to “prebunk” the Hunter Biden laptop story, even though the FBI had authenticated the laptop on Hunter Biden’s iCloud storage account.
 
By connecting the FBI’s misconduct against the left and the right, Parenti argues for a few Patel reform proposals that liberals should get behind. Here are two of them:
 
Move the FBI out of Washington: Parenti writes that “Patel suggests most DC-based FBI staff can be sent to existing field offices, and that the top leadership might need to operate by traveling a circuit of regional offices … An FBI located at the center of DC influence-peddling is necessarily different from one that is scattered across America and tasked with fighting interstate fraud and white-collar crime.”
 
Reform the FBI’s interactions with the secret FISA Court: Patel would do this by “introducing some due-process requirements, including written transcripts of its deliberations and a stable of defense attorneys to attack every warrant request.” This is the essence of the Lee-Leahy Amendment, a proposal to inject civil liberties experts to advise the FISA Court whenever a case implicates sensitive rights involving politics, religion, or journalism. That proposal received 77 votes in the Senate in 2020, with strong support from liberal senators.
 
Parenti concludes that Patel’s agenda to radically reform a Bureau that has “a sordid history of targeting trade unions, peace activists, campus radicals, and Black politicians” deserves the support of the left. But he is skeptical that this will happen in today’s polarized Washington.
 
We ask: Why not welcome the chance to bring guardrails to federal surveillance and reforms to end the Bureau’s political interference? Anyone on either side of the aisle concerned with surveillance abuse should hope for – and encourage Patel – to make good on his goals.

​Gene Schaerr, PPSA general counsel, details in The Washington Examiner how the National Security Agency is stonewalling our Freedom of Information Act (FOIA) request for records showing how much money that agency spent to acquire Americans’ digital data, the size of the datasets purchased, and the sources of this data.
 
PPSA is now suing because the NSA issued a Glomar response, a rule that allows the government to refuse to disclose “the existence or non-existence of the requested information.” Schaerr writes:
 
“This is a judicially created doctrine first issued when a Los Angeles Times reporter broke a story in the mid-1970s that the CIA had retrieved chunks of a sunken Soviet nuclear submarine using a bespoke crane ship, the Glomar Explorer … our filing doesn’t concern a secret CIA program to recover a Soviet submarine with cryptographic machines and nuclear-tipped torpedoes. We seek topline facts the American people and Congress should know – how much is NSA spending on collecting Americans personal information, and who is selling it to them?”
 
Americans deserve to know the basics of the government’s collection and warrantless inspection of our most personal and intimate data. PPSA urges the 119th Congress to hold hearings to examine how the unrestrained use of the judge-created Glomar doctrine is killing a law, the Freedom of Information Act, meant to shed light on government operations.

​This was the year the surveillance reform coalition finally made it to the legislative equivalent of the Super Bowl. As we noted earlier in the year, “We won’t be taking home any Super Bowl rings, but we made a lot of yardage and racked up impressive touchdowns.”
 
The calls and emails you made to Congress appealing for privacy and surveillance reform had a big impact. The warrant requirement for FISA Section 702 data failed in the reauthorization vote for this surveillance authority in April. But in the past, such reform measures usually failed by a wide margin. This time we fell short by a single vote, resulting in a tie, leading to a loss on an amendment to Section 702 reauthorization that would have added a warrant requirement.
 
The reform coalition did achieve several notable victories.

• We persuaded Congress to move the next reauthorization of Section 702 from five years to two. The next reauthorization debate will take place in April next year – keeping it from getting lost in the press of late business. So the reform debate will begin in earnest with the convening of the 119th Congress.

 

• A reform amendment from Rep. Chip Roy (R-TX) passed. The FBI will now be under a microscope, with quarterly reports to Congress on the number of times the FBI searches, “or queries,” the communications of Americans in Section 702 databases (which was enacted by Congress to enable foreign surveillance). Rep. Roy’s measure also allows the leaders of both Houses of Congress and the House and Senate Judiciary and Intelligence Committees to attend hearings of the secret FISA Court.

 

• Thanks to an amendment offered by Rep. Ben Cline (R-VA), Congress permanently ended “abouts” collection – the practice of surveilling Americans who are merely mentioned in a communication.

 

• Soon after the Section 702 debate, the House passed The Fourth Amendment Is Not For Sale Act on a strong bipartisan 219-199 vote. This bill requires the FBI and other federal agencies to obtain a warrant before they can purchase Americans’ personal data, including internet records and location histories. Passage in the House gives a mark of validation to this bill, making it easier for the bill’s Senate champions to enlist their colleagues to support it in the 119th Congress.

 

• In January, the House passed the Protect Reporters from Exploitive State Spying (PRESS) Act. This should set up the PRESS Act for easy passage again in the House and a more fulsome debate in the Senate this year.

The biggest disappointment of the year was the failure of Congress to live up to its promise to narrow the “Make Everyone a Spy” provision attached to Section 702 reauthorization. Sen. Mark Warner (D-VA), Chairman of the Senate Select Committee on Intelligence, asked his colleagues to vote for this measure that would require any business that provides “communications services” – such as free Wi-Fi – to secretly hand over the communications of their customers. He did this as a part of the deal to secure 11th hour reauthorization of Section 702.
 
But Sen. Warner’s promised narrowing of this provision – believed to be a restriction to providers of cloud computing services – never happened. This reform was blocked in the House and failed in the Senate late in the year. Even here, we see a silver lining. Going back to Section 702, had every House Member who supported reform been in attendance, surveillance reform would have easily prevailed. With widespread frustration at the bait-and-switch on the “Make Everyone a Spy” provision, and the tie-breaking vote killing warrants, surveillance reformers will be loaded for bear through April 2026, when Section 702 is once again up for reauthorization.
 
Certainly, surveillance reform is winning the attention and agreement of the American people. We reported on a recent bipartisan YouGov poll shows that 80 percent of Americans support warrant requirements. We sense a gathering of momentum – and we look forward to preparing for the next big round in April 2026.
 
While making our case in Congress, PPSA has also been busy filing lawsuits and Freedom of Information Act (FOIA) requests to unearth the domestic surveillance of the intelligence agencies.

• We took the “alphabet soup” of intelligence agencies – from the CIA to the FBI, and NSA – to court in December for ignoring their legal obligations to conduct searches likely to produce documents responsive to our requests. If successful, this lawsuit will shed light on how the government acquires Americans’ private digital information.

 

• PPSA also recently sued the Department of Justice and the FBI, taking them to task before a federal judge for sending FOIA requesters on a "scavenger hunt” for documents.

 

• PPSA in October submitted a series of FOIA requests seeking critical information on how law enforcement and intelligence agencies handle data obtained by cell-site simulators, which can trick your cellphone in to giving out your personal data.

 

• Before the election, PPSA gave voters our Scorecard of every Member of Congress, grading each Member’s votes for or against surveillance reform on an “A” to “F” scale.

 
PPSA also communicated the essentials of surveillance issues to the American people in understandable terms. For example:

• In April, PPSA’s general counsel Gene Schaerr joined Liza Goitein, senior director of the Brennan Center for Justice’s Liberty & National Security program in a video podcast interviewing journalist Byron Tau, author of Means of Control.
  
  
• Over the summer, PPSA’s Senior Policy Advisor, Bob Goodlatte, former Chairman of the House Judiciary Committee, teamed up with Gene Schaerr in July to respond in Just Security to a number of anti-reform pieces by former intelligence officials. What they said could be a leitmotif for 2025: “For the sake of national security, the intelligence community must take stock of the underlying reasons why it is losing the trust and goodwill of the American people and their representatives in Congress.”
  ​
• PPSA’s website and more than 225 plain-language blogs on surveillance issues attracted 18.9 million visitors in 2024.

 
Expect 2025 to see a fast-moving, rollicking debate on surveillance reform. To be a part of our effort and connected to breaking events, sign up for free membership in PPSA.

During his presidential campaign, Donald Trump issued a ten-step “plan to dismantle the Deep State.” Two of his proposals dovetail perfectly with measures advocated by PPSA that would hold the Intelligence Community accountable for surveillance abuses. One measure fits President Trump’s promise to “totally reform FISA courts.” The second measure supports his promise to declassify documents that reveal the intelligence community’s “spying, censorship, and corruption.”
 
President Trump Should Support Expansion of the FISC Amicus Program:
The Foreign Intelligence Surveillance Court (FISC) has the ability to appoint outside experts with high-level security clearances to advocate for Americans’ First and Fourth Amendment rights before the secret court. But the FISC has only resorted to such experts, or amici curiae, a handful of times in evaluating thousands of requests for secret warrants from the FBI. The FISC shamefully did not bother with such an amicus when it authorized FBI surveillance of Trump campaign aide Carter Page, allowing the bureau to spy on President Trump’s first campaign and transition.

• FISC reform is popular and bipartisan. In 2020, 77 senators voted in favor of a measure then known as the Lee-Leahy Amendment, which gives the secret court access to independent advice from experts on civil liberties when the government seeks to spy on domestic media, as well as religious, political, and other particularly sensitive groups. FISC judges should also be required to use amici in cases involving any requests for approval of new programs, new technologies, new uses of an existing technology, or the reauthorization of any programmatic surveillance of Americans.

 
o   Such legislation could also guarantee that all exculpatory evidence, which might cast doubt on the agency’s conclusions, be provided to the amicus. This would guarantee that the FISC is presented with all the relevant evidence, not merely the government’s heavily curated, pro-surveillance requests, as happened in the Carter Page case.
 
President Trump Should Support Reform of the Judge-Made “Glomar” Response
Courts around the country have endorsed what are called Glomar responses, a judge-made doctrine that shuts down Freedom of Information Act (FOIA) requests. It does this by allowing an agency to neither confirm nor deny the existence of responsive documents.

• Legislation should narrow the government’s ability to invoke Glomar to avoid its obligations under the FOIA law to produce documents.

 

• Legislation should also narrow the availability of Glomar responses in cases in which a request seeks documents about the government’s spying on American citizens.

 

• Even when a Glomar response stands, and requested documents remain classified, the American people should be informed when the FOIA request confirms unlawful surveillance. This knowledge could be used to enhance congressional investigations and oversight, as well as to support declassification.

 
President-elect Trump has personal reasons to feel abused by out-of-control FBI surveillance. By supporting these reform measures, he can build a legacy of reform and freedom from illicit surveillance.

​Jimmy Carter, while on a book tour in 2014, had the following to say about the intelligence agencies and their surveillance of the American people:
 
"When I was president I was very careful not to let the intelligence agencies spy on people. Now, of course, the NSA is well-known. They record almost every telephone call in America, and every cellphone call and email. I think they've gone to extremes to take advantage of every loophole in the law. … In the last two or three years when I want to write a very private message to someone and I don't particularly want the U.S. government to know about it, I just handwrite it and mail it."
 
While we mourn the passing of the 39th president, we should also heed his warning – one that is growing more relevant with time.

​Readers of a certain vintage will remember a 1980s Motown hit by Rockwell, with backup vocals from the Jacksons, called Somebody’s Watching Me. The music video of that song is creepy, showing a young man stumbling around his house in fear, agitated by hidden cameras in stuffed animals, actors on television who appear to be watching him, and strangers popping up in his shower.
 
What seemed like paranoia in the age of big hair, shoulder pads, and acid-washed jeans is increasingly commonplace in the third decade of the 21st century. In the People’s Republic of China, 1.4 billion people live under constant surveillance by networked facial recognition cameras, the monitoring of their social media posts, and the mapping of their contacts through texts and emails. Armed with this ocean of data, AI is ready to flag anyone who says or does something slightly at odds with the regime. Even in our democracy, about a dozen federal intelligence agencies buy and inspect the personal and geolocation data of Americans – exposing our private lives, beliefs, religious, and political practices – without resorting to the Fourth Amendment requirement for a warrant.
 
The focus of this blog has long been on this breach of Americans’ constitutional rights, with all of its social and political implications for our democracy. But now a new study raises a different question – what does surveillance do to our brains? And what are the implications for public health?
 
Suppose I told you not to turn around, but to just take my word that there is a man standing in the window behind you watching your every move. Does the feeling that thought engenders make your body stiffen? Does it make the skin on the back of your neck tingle? Is your every move suddenly self-conscious? Now imagine feeling this all the time.
 
A report in SciTechDaily details the findings of an Australian professor of neuroscience, Kiley Seymour, on the effect of surveillance on the brain function of 54 participants in his experiment. “We know CCTV changes our behavior, and that’s the main driver for retailers and others wanting to deploy such technology to prevent unwanted behavior,” Seymour said. “However, we show it’s not only overt behavior that changes – our brain changes the way it processes information.”
 
The study found that people who know they are being surveilled become hyperaware of faces, recognizing others faster than a control group. Though the study’s participants are unaware of it, they are jumpy, always on the lookout to categorize someone as benign or a potential threat. Seymour told SciTechDaily that his study found the same “hypersensitivity to eye gaze in mental health conditions like psychosis and social anxiety disorder where individuals hold irrational beliefs or preoccupations with the idea of being watched.”
 
One can imagine how this might make people in China jittery and anxious. On the other hand, we doubt this effect is being generated in the United States by our government’s gathering and reviewing of our data, even when it exposes the most personal and intimate aspects of our lives. Many Americans are unaware of this breach of their privacy. And for those that are aware, that creepy feeling of being watched is probably not associated with the abstract idea of purchased data in a server somewhere.
 
If so, this is a shame. The review of our data by the FBI, IRS, Department of Homeland Security, and other agencies should give you that creepy feeling, like that man standing behind you right now.

Nora Biette-Timmons of Jezebel has an amusing if expletive-filled take on how Christmas accustoms children to live in a surveillance state. She enumerates the bad actors, beginning with Santa Claus:
 
“[H]e who is ‘making a list and checking it twice’ who is ‘gonna find out who is naughty and nice.’ You know who else is making lists of names? The FBI, the NSA, every tech company you have ever heard of (and, probably more worrying, every tech company you haven’t) … In fact, the promise that Santa’s checking his list twice might be worse! You’re teaching your kid to accept being surveilled, but then there’s the reassurance that someone’s double-checking the work, that you won’t accidentally end up on the Naughty List if you don’t truly belong there. The same cannot be said for the federal government.”
 
Then there is the ultimate bad actor, the very popular Elf on a Shelf.
 
“The Elf ‘exists’ to report to Santa at the end of every day. Ostensibly this is to update the big guy on your kids’ Christmas wishes, but implicit in the idea of reporting is that they’re also updating him on behavior … Elf on the Shelf is a narc!!”
 
We at PPSA love Christmas and everything about it. We are reassured, not bothered, by the idea that a metaphysical gift-giver wants us to be good to each other. But as long as we break no laws, whether we’re naughty or nice is no business of the FBI, the NSA, and tech companies we have or have not heard of.

A solemn promise was made on the floor of the U.S. Senate – and by the Congress to the American people – that has been broken. As a result, most businesses and organizations in the United States that offer free Wi-Fi service now have a legal obligation to spy on their tenants and customers for the National Security Agency and keep that spying secret from them forever.
 
In April the U.S. Senate reauthorized FISA Section 702, an authority that allows federal agencies to spy on foreign targets on foreign soil. Facing an eleventh-hour vote, the Senate took Senate Intelligence Committee Chairman Mark Warner (D-VA) at his word that a flaw in the bill would soon be corrected. Accepting that promise, the Senate reauthorized Section 702.
 
That flaw concerns a provision added to the reauthorization that allows the NSA to force businesses that offer internet communications – from the landlords of office complexes that house journalists and political campaigns, to fitness centers, to houses of worship – to make the communications of their customers secretly available. Janitors and cleaning services with access to equipment and thumb-drives in their pockets can now be legally enlisted to spy for the NSA. All this can be done without bothering with niceties like the U.S. Constitution’s Fourth Amendment and its warrant requirement.
 
Sen. Warner acknowledged that this language defining an “electronic communications service provider” was overbroad and promised a fix to narrow it. Though the target category is classified, that fix is widely believed to be narrowing the provision to providers of cloud communications.
 
To be fair to Sen. Warner, it was a few House Republicans who rejected adding the fix to the Intelligence Authorization Act. And it was some Republicans who fought to reject any narrowing of this vast expansion of the American surveillance state, dubbed by many to be the “Make Everyone a Spy” provision. We still remain dismayed and disappointed that the Chairman of the Senate Intelligence Committee could make such a promise and not see to it that it is kept.
 
But Congress can still redeem itself. Surely Members will not want to disappoint constituents as word spreads about the extent and magnitude of this new, limitless domestic surveillance program. Surely they will also want to live up to a solemn promise made to colleagues. This fix can be enacted next year.
 
In the meantime, PPSA will be working with our surveillance reform allies, left and right, to narrow the “Make Everyone a Spy” provision.
 
If Congress chooses not to keep its word, however, the American people will surely grow alarmed and upset over this expansive surveillance. Keep in mind that the House came within one tie-breaking vote of adding a warrant requirement in the reauthorization of Section 702 this year. The Make Everyone a Spy law will now be Exhibit A in making our case for warrants and against the surveillance state.
​

​In a previous blog, we reported on the use of “Suspicious Activity Reports” mandated by the Bank Secrecy Act to spy on politically disfavored groups.
 
We also reported that the government uses these reports to force banks to close the accounts of groups ranging from a trade association to pawn shops, firearms dealers, and a former First Lady. Debanking is an easy way to silence or intimidate people and organizations.
 
Now, thanks to a recent report from the House Judiciary Committee and its Select Subcommittee on the Weaponization of the Federal Government, it is clear that this misuse of this law is even more expansive and worse than we suspected.
 
Congress enacted the Bank Secrecy Act (BSA) to require banks to report to the government suspicious transactions by customers that might indicate that they are linked to terrorism, human trafficking, or drug dealing. The House report reveals that the FBI “has turned this framework on its head” by issuing “requests” – authorized by no law – to demand banks spy on targeted people or organizations. In 48,000 pages of documents, House investigators could confirm only one financial institution requested legal process from the FBI for the information it was seeking. “All too often,” House investigators wrote, “the FBI appeared to receive no pushback.” They concluded:
 
“In sum, the FBI has turned this framework on its head and contravened the Fourth Amendment’s requirement of particularity and probable cause.”
 
While the FBI had an obligation to seek out those who beat police officers and smashed the doors and windows of the Capitol on Jan. 6, it coordinated with the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) to encourage financial institutions across the country to scour their data and file Suspicious Activity Reports on Americans without any clear criminal nexus. As we reported before, Americans were targeted for going to certain stores, like Dick’s Sporting Goods or a Bass Pro Shop.
 
A Bank Secrecy Act Advisory Group, meant to serve as an advisory body to the Treasury Department, has become a secret service unto itself. House investigators report that this advisory group “is also a tool for federal law enforcement and financial institutions to monitor the private, financial data of American citizens.”
 
The scale of warrantless surveillance under this authority is immense. In 2023, some 25,000 federal, state, and local officials had warrantless access to data acquired under this law. In 2023, government officials ran more than 3.3 million searches of a FinCEN Query program of these reports. FinCEN reports that “472 federal, state, and local law enforcement, regulatory, and national security agencies have access to BSA reports …”
 
And this is just one federal program monitoring Americans financial lives, which is a way of monitoring our personal, romantic, political, and religious lives as well. Reforming the Bank Secrecy Act should be at the top of the agenda for the incoming Trump Administration and the 119th Congress.

​Allysia Finley in The Wall Street Journal covers the widespread and growing practice of federal agencies’ using the Bank Secrecy Act to surveil and punish politically disfavored groups through “debanking.”
 
Banks face penalties that can go into the billions of dollars if they fail to close an account for a customer who is the target of numerous “Suspicious Activity Reports” (SARs), which flag them as “high risk.” Last year, banks filed 4.6 million SARS, leading to an unknown number of customers losing their accounts.  
 
Victims include former First Lady Melania Trump, and groups targeted by some in government such as firearms dealers, payday lenders, and pawn shops. Now the provision has blocked the Blockchain Association, a trade group for the cryptocurrency industry. Barney Frank, a former Chair of the House Financial Services Committee, says that the FDIC seizes banks “to send a message to get people away from crypto.”
 
Finley writes:
 
“The overbreadth in bank reporting is a plus for the government, since it gives the Federal Bureau of Investigation a trove of reports to scour without a warrant. The more info it has on more bank customers, the better, even if most haven’t committed a crime. Regulators prohibit banks from notifying customers if they have filed a SAR.”
 
Unraveling the use of the Bank Secrecy Act to compile voluminous records of Americans’ private financial activities should be high on the list for reform by the incoming Trump administration and the next Congress.

​Paul Atkins, Donald Trump’s nominee to head the Securities Exchange Commission, will have a chance to roll back big expansions of the federal surveillance state within his first few days on the job.
 
Atkins can do this because outgoing SEC Chair Gary Gensler has pioneered new territory by using his agency to expand the financial surveillance of the American people without clear statutory authorization. The SEC under Gensler has made use of a program called the Consolidated Audit Trail, a database that collects not just investors’ trades, but also the personally identifiable information of 100 million U.S investors in a database run by an agency with a record of vulnerability to hackers.
 
This surveillance is based not on a law, but on SEC’s Rule 613, which was originally meant to respond to the 2010 “flash crash.” Never one to let a crisis go to waste, Gensler expanded what was meant to be a fix to a technical glitch and instead turned it into a national surveillance program. SEC’s Rule 613 now requires self-regulatory organizations, like private stock exchanges, to collect details about private trades on a U.S. exchange. Consequently, some 3,000 federal employees have access to the confidential data of America’s private investors.
 
The SEC under Gensler has also fined 26 financial firms almost $400 million for failing to track the private communications of their employees on their personal phones. Most financial firms already enforce policies that prohibit their employees from using their personal devices and messaging apps like WhatsApp for business. But until now, it was not the business of an employer to force employees to hand over their personal phones for inspection.
 
Perhaps Paul Adkins, as the new SEC Chair, will work to quickly undo Gensler’s handiwork and return a modicum of financial privacy to the American people.
 
President-elect Trump’s nominee as Treasury Secretary, Scott Bessent, has a similar chance to undo bureaucratically conjured surveillance. He can do this by ending the department’s Financial Crimes Enforcement Network’s “beneficial ownership” form, which threatens Americans with prison time and a $10,000 fine if they fail to file this form listing all the owners of their small businesses.
 
There is a lot of warrantless surveillance conducted by the federal government that can only be changed by law, from the purchasing of Americans’ personal data by the IRS, FBI, and many other federal agencies, to the expansion of the “Make Everyone a Spy” law to enable the NSA to force millions of small businesses that provide Wi-Fi to customers to turn over the communications of their customers. Those are heavy lifts that will take considerable effort by Congressional reformers to change.
 
But the SEC and FinCen items are low-hanging fruit. Scott Bessent and Paul Adkins should pick them as soon as possible.

​The first reactions to a report issued last week by Department of Justice Inspector General Michael Horowitz centered on the man-bites-dog irony of the Justice Department having spied on the nominee to head the FBI, Kash Patel. The underlying story is far bigger and as significant as any other of recent surveillance scandals – Horowitz revealed that the government’s lawyers failed to inform a judge in the secret FISA Court that their applications for surveillance were to spy on Members of Congress and senior congressional aides on committees that oversee the Department of Justice.
 
It’s as if you asked a friend if you could borrow her car to go to the store but forget to tell her that the store is in Mexico. Justice Department prosecutors showed just about that level of mendacity in 2017 when they sought communications of Members of Congress, including then-House Intelligence Committee Chairman, Rep. Adam Schiff (D-CA), and Rep. Erik Swalwell (D-CA), 20 Democratic staffers, as well as Patel and 19 other Republican staffers.
 
The intent of the request was to reveal if there was cause-and-effect between their emails and journalists at The Washington Post, The New York Times, and CNN, who wrote stories in those outlets based on a classified leak of “Top Secret/Sensitive Compartmentalized” documents. As it turned out, no crimes or leaks were discovered. Horowitz reveals that DOJ obtained 40 Non-Disclosure Orders forcing communications providers to secretly provide the records of Members of Congress and staffers, with some of the search orders extended up to four years – even though the request involved leaks around the same time frame in 2017.
 
Horowitz concludes:
 

• “The Department’s decision to compel the production of non-content communications records of Members of Congress and congressional staffers implicated the constitutional rights and authorities of a co-equal branch of government ...

 

• The Justice Department’s actions “risks chilling Congress’s ability to conduct oversight of the executive branch because it exposes congressional officials to having their records reviewed by the Department solely for conducting Congress’s constitutionally authorized oversight duties and creating, at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch.”

 
The Justice Department’s policy did not, at that time, have an internal policy governing the compelled acquisition of congressional communication records from third-parties. Perhaps feeling the heat from outraged Members of Congress, Justice established the requirement in future applications to inform the Justice Department’s Public Integrity Section and a U.S. attorney before surveilling Members of Congress and their staffers in this way. Horowitz found that process insufficient, calling on a new policy that requires the informing of the Attorney General or the Deputy Attorney General.
 
Concerning the surveillance of journalists, Horowitz found that the Justice Department did not comply with all of its internal provisions. For example, a committee dedicated to applications for media surveillance was not convened, as required by Justice Department policy. That policy also required informing the Director of National Intelligence, which the Justice Department did not do in at least one instance.
 
PPSA believes the intelligence agencies are surveilling Congress in many other ways. That is why we have sued not just the Department of Justice, but also the NSA, the FBI, the CIA, and the State Department to learn if these agencies are surveilling current and former Members of Congress with oversight responsibilities over those very agencies.
 
If the intelligence community is surveilling Members of Congress on the Intelligence and Judiciary Committees, then it is a case of the overseen overseeing the overseers. This danger is made much worse by House policies, where relatively few House staffers have security clearances that would allow them to help their bosses keep the intelligence agencies in check.
 
We hope at a minimum that the House will widen staffer clearances, as the Senate has done, to assist in greater oversight of these agencies. We especially hope that incoming President Trump will have his people dig into the practice of surveilling Members of Congress and bring it to light.

​Marc Andreessen, inventor of the first internet web browser and leading tech venture capitalist, is quoted in a piece by Michael Barone in RealClearPolitics, taken from an interview with Free Press founder Bari Weiss.
 
“My concern is that the censorship and political control of AI is a thousand times more dangerous than censorship and political control of social media – maybe a million times more dangerous. The thing with AI is, I think AI is going to be the control layer for everything in the future – how the health care system works, how the education system works, how the government works. So that if AI is woke, biased, censored, politically controlled, you are in a hyper-Orwellian, China-style, social credit system nightmare.”

​A recent Wired story about digital coordinates that track U.S. soldiers and spies to brothels and nuclear vaults in Germany might have attracted almost as many eyeballs as the record-shattering premiere of the Kardashians on Hulu. The Wired mashup of atom bombs and visits to an establishment called SexWorld certainly had a Strangelovian allure.
 
As Dhruv Mehrotra and Dell Cameron reported, the more than 3 billion phone coordinates collected by one U.S. data broker alone follows U.S. military personnel as they go about their business – from home, to dropping off children at school, to intelligence and nuclear facilities, to, yes, illicit nocturnal activities. These journalists tracked hundreds of thousands of signals inside sensitive U.S. installations in Germany that are legally collected for digital advertising. One signal tracked an employee inside a secret, windowless National Security Agency building with a metal exterior called the Tin Can.  
 
Such tracking does more than risk hostile actions from adversary nations and terrorists. The problem with a big stream of personal data is that it is like a dandelion – it wants to go everywhere. Take China’s vast surveillance state that links facial recognition, comprehensive tracking of digital searches, communications, and location history. It was built to give the Chinese Communist Party unprecedented control of that nation’s populace – where people go, their contacts, their messages, their private beliefs. But even one of the most tyrannical regimes on earth cannot control its own surveillance. Another Wired exposé by Andrew Greenberg demonstrates that corrupt officials are selling big chunks of data on China’s citizens to black market operators and scammers as a “side hustle.”
 
This is in keeping with the ethos of the shady world of online digital auctions. The Consumer Financial Protection Bureau recently took a step toward fleshing out a Biden administration executive order restricting foreign data sales. While the Federal Trade Commission and the Consumer Financial Protection Bureau have commendably tried to place some restrictions on the sale of Americans’ data, the global and shadowy nature of the online data-auction market guarantees that these actions will enjoy limited success. Departing FBI Director Christopher Wray has warned it will be very difficult to keep the mass sale of Americans’ data to domestic and foreign data brokers from the hands of adversaries. Just as spies don’t walk around with CIA badges, so too buyers for China, Russia, Iran, and North Korea don’t advertise themselves as such. Many companies, Director Wray said, appear on the up-and-up but, through the use of ownership shell games, are in fact controlled by Chinese intelligence.
 
The potential for blackmail and interference in NATO’s response to aggression virtually guarantees that there will be legislative action in Congress to end the tracking of service members and intelligence agents. As Congress begins to research such a bill, however, it should take stock of just how wide and dangerous the tracking threat is to all Americans.
 
As Congress and the Pentagon look into safeguarding the digital data of Americans serving our nation abroad, they would do well to extend those protections to Americans at home by embracing the Fourth Amendment Is Not for Sale Act. Requiring probable cause warrants for the collection of Americans’ most personal information would be a good way to help further restrict the treasure trove of data – by telling the government not collect that data in the first place.

​Shortly after the vicious public murder of Brian Thompson, CEO of United Healthcare, Juliette Kayyem of Atlantic wrote a perceptive piece about the tech-savviness of the gunman, who mostly succeeded in hiding his face behind a mask and a hood.
 
“The killer is a master of the modern surveillance environment; he understands the camera,” Kayyem wrote. “Thompson’s killer seems to accept technology as a given. Electronic surveillance didn’t deter him from committing murder in public, and he seems to have carefully considered how others might respond to his action.”
 
At this writing, police in Pennsylvania are holding Ivy League grad Luigi Mangione as a “person of interest” in relation to the murder. Despite many media reports of incriminating details, Mangione is, of course, entitled to a presumption of innocence. But enough of the killer’s face had been shown in social media for a McDonald’s employee to call the police after seeming to recognize Mangione in those images.
 
Whoever killed Thompson, he made a mistake – as Kayyem noted – in showing his smile while flirting with someone. This allowed a significant slice of his profile to be captured. But even when the killer was careful, his eyes and upper face were captured by a camera in a taxicab. The lesson seems to be that a professional criminal cannot fully evade what Kayyem calls a “surveillance state” made up of ubiquitous cameras.
 
We applaud the use of this technology to track down stone-cold killers and other violent criminals. Another example: CCTV technology was put to good use in the UK in 2018 when Russian agents who tried to kill two Russian defectors with the nerve agent Novichok were identified on video. The defectors survived, but a woman who came across a perfume bottle containing the toxin sprayed it on her wrist and died. When the images of the Russian operatives surfaced, they claimed they were tourists who traveled to Salisbury, England, to see its medieval cathedral.
 
These are, of course, excellent uses of cameras and facial recognition technology. Danger to a civil society arises when such technology is used routinely to track law-abiding civilians going about their daily tasks or engaged in peaceful protests, religious services, the practice of journalism, or some other form of ordinary business or free speech. This is why a search warrant should be required to access the saved product of such surveillance to ensure it is used for legitimate purposes – catching killers, for example – and not to spy on ordinary citizens.
 
Far from showing that the urban networks of comprehensive surveillance are riddled with holes, recent events show that they are tighter than ever. That is a good thing, until it is not. Hence the need for safeguards, starting with the Fourth Amendment.

​As Americans become aware – and concerned – about how our most sensitive and private digital information is sold by data brokers, there are stirrings within the federal government to place at least some guardrails on the practice.
 
In a unanimous, bipartisan vote last week by the commissioners of the Federal Trade Commission, that agency cracked down on two data brokers, Mobilewalla and Gravy Analytics/Venntel, for unlawfully tracking and selling sensitive data. FTC declared that this data “not only compromised consumers’ personal privacy, but exposed them to potential discrimination, physical violence, and other harms …”
 
Such practices included matching consumers’ identities with location data from health clinics, religious organizations, labor union offices, LGBTQ+-related locations, political gatherings, and military installations. By conducting real-time bidding exchanges, these brokers combined data from these auctions with data from other sources, to identify users at these locations by their mobile advertising IDs.
 
Just days before, the Consumer Financial Protection Bureau proposed a rule that would prevent data brokers from collecting and selling sensitive personal information such as phone numbers and Social Security numbers, as well as personal financial information outside of relevant contexts, like a mortgage application. CFPB’s action also seeks to prevent the sale of the information of Americans in the military or involved in national security to “scammers, stalkers, and spies.”
 
We applaud these bold bipartisan moves by FTC and CFPB, but we must keep in mind that these are first steps. These actions will only marginally address the vast sea of personal information sold by data brokers to all sorts of organizations and governments, including our own. There is throughout our government a failure to fully appreciate just how intrusive the mass collection of personal data actually is.
 
Consider the reaction of Republican FTC Commissioner Andrew Ferguson. While mostly voting with the majority, Ferguson dissented on the breadth of the majority’s take on sensitive categories. Ferguson sees no distinction between the exposure of one’s digital location history and what can be learned by a private detective following a target across public spaces, a practice that is perfectly legal.
 
Ferguson reasoned that many people are an open book about their health conditions, religion, and sexual orientation. “While some of these characteristics often entail private facts, others are not usually considered private information,” Ferguson wrote. “Attending a political protest, for example, is a public act.”
 
We beg to differ.
 
“A private detective could find this out” is too weak a standard to apply to the wealth of digital data on the privacies of millions of people’s lives. Data is different. As the Supreme Court explained in Riley v. California, “a cell phone search would typically expose to the government far more than the most exhaustive search of [even] a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.”
 
That was true when it was written in 2014, and it is even more true today. Nowadays, artificial intelligence can analyze data and reveal patterns that no gumshoe could put together. In the case of a political protest, a high school student might attend, say, a trans rights event but be far from ready to let his parents or peers know about it. Or an adherent of one religion may attend services of an entirely different religion with conversion in mind but be far from willing to tell relatives.
 
Worse, deeply personal information in the hands of prosecutors completely bypasses the letter and the intent of the Fourth Amendment, which requires the government to get a probable cause warrant before using our information against us. The government lacks appreciation of its own role in sweeping in the sensitive data of Americans. Venntel’s customers include the Department of Homeland Security, the Drug Enforcement Administration, the FBI, and the IRS. In all, about a dozen federal law enforcement and intelligence agencies purchase such data from many brokers and hold it for warrantless inspection.
 
The FTC deserves credit for taking this step to tighten up the use of sensitive information. But the next step must be passage of the Fourth Amendment Is Not for Sale Act, which would require the government to obtain probable cause warrants before obtaining and using our most personal information against us.