​In his fusillade of executive actions, President Donald Trump sent letters demanding the resignations of Sharon Bradford Franklin, Chair of the Privacy and Civil Liberties Oversight Board (PCLOB), along with her two Democratic colleagues. If they don’t leave, then in his trademark style the president will say, “You’re fired!”
 
We suggest that the president think twice. The new administration is clearing out the very people who could be natural allies of President Trump in one key regard – exposing the misuse of intelligence programs. This includes abuses of some of the very programs that were used against Donald Trump in the past.
 
By law, the program must have members from both parties. With the Democrats fired and a preexisting Republican vacancy, PCLOB would have only one remaining member, Republican Beth A. Williams. Without a quorum, PCLOB would effectively not exist. At least two of the Democrats – Chair Franklin and Travis LeBlanc – have been outspoken skeptics of the intelligence agencies and the surveillance status quo.
 
PCLOB is the only watchdog agency tasked with ensuring that the intelligence community and its programs respect Americans’ rights and freedoms. Its stated mission is “working to ensure that efforts by the executive branch to protect the nation from terrorism appropriately safeguard privacy and civil liberty.” Such a watchdog could be a strong ally to a Director of National Intelligence like Tulsi Gabbard and an FBI Director like Kash Patel in exposing surveillance abuses by the intelligence community.
 
Firing the sitting Democrats will lead to one of two outcomes. It will either null out a privacy watchdog that could help the administration’s agenda curb the “deep state.” Or the agency will be refloated with a new quorum that – under its legal charter – must include two new Democrats, who might be a lot less friendly to the Trump surveillance reform agenda.
 
The Trump Administration is off to a commendably brisk start. We respectfully suggest that this decision get a second look.

​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.

​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.

​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.

​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.

​Investigative journalist Ronan Farrow delves into the Pandora’s box that is Israel’s NSO Group, a company (now on a U.S. Commerce Department blacklist) that unleashes technologies that allow regimes and cartels to transform any smartphone into a comprehensive spying device.
 
One NSO brainchild is Pegasus, the software that reports every email, text, and search performed on smartphones, while turning their cameras and microphones into 24-hour surveillance devices. It’s enough to give Orwell’s Big Brother feelings of inadequacy.
 
Farrow covers well-tread stories he has long followed in The New Yorker, also reported by many U.S. and British journalists, and well explored in this blog. Farrow recounts the litany of crimes in which Pegasus and NSO are implicated. These include Saudi Arabia’s murder of Jamal Khashoggi, the murder of Mexican journalists by the cartels, and the surveillance of pro-independence politicians in Catalonia and their extended families by Spanish intelligence. In the latter case, Farrow turns to Toronto-based Citizen Lab to confirm that one Catalonian politician’s sister and parents were comprehensively surveilled. The parents were physicians, so Spanish intelligence also swept up the confidential information of their patients as well.
 
While the reality portrayed by Surveilled is a familiar one to readers of this blog, it drives home the horror of NSO technology as only a documentary with high production values can do. Still, this documentary could have been better. The show is marred by too many reaction shots of Farrow, who frequently mugs for the camera. It also left unasked follow-up questions of Rep. Jim Himes (D-CT), Ranking Member of the House Intelligence Committee.
 
In his sit-down with Farrow, Himes made the case that U.S. agencies need to have copies of Pegasus and similar technologies, if only to understand the capabilities of bad actors like Russia and North Korea. Fair point. But Rep. Himes seems oblivious to the dangers of such a comprehensive spyware in domestic surveillance.
 
Rep. Himes says he is not aware of Pegasus being used domestically. It was deployed by Rwandan spies to surveil the phone of U.S. resident Carine Kanimba in her meetings with the U.S. State Department. Kanimba was looking for ways to liberate her father, settled in San Antonio, who was lured onto a plane while abroad and kidnapped by Rwandan authorities.
 
Rep. Himes says he would want the FBI to have Pegasus at its fingertips in case one of his own daughters were kidnapped. Even civil libertarians agree there should be exceptions for such “exigent” and emergency circumstances in which even a warrant requirement should not slow down investigators. The FBI can already track cellphones and the movements of their owners. If the FBI were to deploy Pegasus, however, it would give the bureau redundant and immense power to video record Americans in their private moments, as well as to record audio of their conversations.
 
Rep. Himes is unfazed. When Farrow asks how Pegasus should be used domestically, Rep. Himes replies that we should “do the hard work of assessing that law enforcement uses it consistent with our civil liberties.” He also spoke of “guardrails” that might be needed for such technology.
 
Such a guardrail, however, already exists. It is called the Fourth Amendment of the Constitution, which mandates the use of probable cause warrants before the government can surveil the American people. But even with probable cause, Pegasus is too robust a spy tool to trust the FBI to use domestically.
 
The whole NSO-Pegasus saga is just one part of much bigger story in which privacy has been eroded. Federal agencies, ranging from the FBI to IRS and Homeland Security, purchase the most intimate and personal digital data of Americans from third-party data brokers, and review it without warrants. Congress is even poised to renege on a deal to narrow the definition of an “electronic communications service provider,” making any office complex, fitness facility, or house of worship that offers Wi-Fi connections to be obligated to secretly turn over Americans’ communications without a warrant.
 
The sad reality is that Surveilled only touches on one of many crises in the destruction of Americans’ privacy. Perhaps HBO should consider making this a series.
 
They would never run out of material.

​It is widely reported that the breach of U.S. telecom systems allowed China’s Salt Typhoon group of hackers to listen in on the conversations of senior national security officials and political figures, including Donald Trump and J.D. Vance during the recent presidential campaign.
 
In fact, they may still be spying on senior U.S. officials.
 
Sen. Mark Warner (D-VA), Chairman of the Senate Intelligence Committee, on Thursday said that China’s hack was “the worst telecom hack in our nation’s history – by far.” Warner, himself a former telecom executive, said that the hack across the systems of multiple internet service providers is ongoing, and that the “barn door is still wide open, or mostly open.”
 
The only surprise, really, is that this was a surprise. When our government creates a pathway to spy on American citizens, that same pathway is sure to be exploited by foreign spies.
 
The FBI believes the hackers entered the system that enables court-ordered taps on voice calls and texts of Americans suspected of a crime. These systems are put in place by internet service providers like AT&T, Verizon, and other telecoms to allow the government to search for evidence, a practice authorized by the 1994 Communications Assistance for Law Enforcement Act. Thus the system of domestic surveillance used by the FBI and law enforcement has been reverse-engineered by Chinese intelligence to turn that system back on our government.
 
This point is brought home by FBI documents PPSA obtained from a Freedom of Information Act request that reveal a prescient question put to FBI Director Christopher Wray by then-Sen. Patrick Leahy in 2018. The Vermont Democrat, now retired, anticipated the recent catastrophic breach of U.S. telecom systems.
 
In his question to Director Wray, Sen. Leahy asked: “The FBI is reportedly renewing a push for legal authority to force decryption tools into smartphones and other devices. I am concerned this sort of ‘exceptional access’ system would introduce inherent vulnerabilities and weaken security for everyone …”
 
The New York Times reports that according to the FBI, the Salt Typhoon hack resulted from China’s theft of passwords used by law enforcement to enact court-ordered surveillance. But Sen. Leahy correctly identified the danger of creating such domestic surveillance systems and the next possible cause of an even more catastrophic breach. He argued that a backdoor to encrypted services would provide a point of entry that could eventually be used by foreign intelligence.
 
The imperviousness of encryption was confirmed by authorities who believe that China was not able to listen in on conversations over WhatsApp and Signal, which encrypt consumers’ communications. While China’s hackers could intercept text messages between iPhones and Android phones, they could not intercept messages sent between iPhones over Apple’s iMessage system, which is also encrypted.
 
Leahy asked another prescient question: “If we require U.S. technology companies to build ‘backdoors’ into their products, then what do you expect Apple to do when the Chinese government demands that Apple help unlock the iPhone of a peaceful political or religious dissident in China?”
 
Sen. Leahy was right: Encryption works to keep people here and abroad safe from tyrants. We should heed his warning – carving a backdoor into encrypted communications creates a doorway anyone might walk through.

​A public report from the secret Foreign Intelligence Surveillance Court (FISC) gives the intelligence community a mixed review, noting progress in meeting its own internal quality standards while revealing violations and abuses as well.
 
The court reviewed compliance by the FBI, NSA, and CIA with “minimization” and “querying” procedures under Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes spying on foreign targets located on foreign soil. In plain English, minimization means restricting access to the private data or communications of Americans that are caught up in the NSA’s global trawl, which frequently collects non-pertinent conversations that lack intelligence or evidentiary value. Querying standards direct agents to use precise search terms in an effort to avoid capturing Americans’ communications. Throughout, the government purports to earnestly verify the “foreign-ness” of a target.
 

• A chart shows that tightened FBI training has resulted in radically reduced errors in its query standards. In the first three months of 2022, out of 3,614 queries, the FBI failed to meet its standard in 952 of them, or 26 percent. In a two-month period in 2023, out of 3,506 queries, the FBI failed to meet its internal standards in 10 of them, or 0.3 percent. We should realize, however, that when the FBI evaluates its adherence to its own standards, it is giving itself a grade.

 
Given that the court previously revealed that past queries violated the privacy of a U.S. Senator, a U.S. House Member, 19,000 donors to a federal candidate, a state senator, and a state judge, even small numbers could be hiding a lot. However tight the querying standard, warrantless searches can also still be used by the FBI to develop evidence for purely domestic cases, a source that might not be disclosed in open court.
 

• The report revealed that at least five FBI agents in four field offices routinely used a bypass in their queries to avoid entering justifications for their searches or answering prompts requiring the reasons for the search. The Justice Department’s National Security Division was told that these bypasses were routinely used by these agents. The FBI informed the court that it had not “discovered any indications that the FBI personnel who engaged in this method were motivated by an intent to circumvent the query requirements.” What did these agents believe that the computer system’s justification prompts were for?

 

• Despite the government’s purported dedication to its minimization standards, it stores information in a non-minimized format by default. “In general, analysts can search databases containing unminimized information acquired pursuant to Section 702 using one or more search terms to discover and retrieve information of interest.” How this process adheres to overall minimization procedures is hard to understand – a good question for Congress to explore.

 
As one moves through this report into NSA and CIA activities, the redactions often fill half a page.
 

• Reading (literally) between the lines, the NSA between July 2021 and April 2023 suffered a software error that undermined its privacy assurances to the FISC. Noting that “this situation raises concerns,” the FISC revealed that “the government took until February 2024 to report the circumstances to the court,” despite a rule that “requires immediate notification when the government discovers that it has made a material misstatement or omission or implemented a FISC authorization in a noncompliant manner.”

 

• The court also found it necessary in this report to order that raw upstream data (taken from major internet cables and switches) will not be provided to the FBI, CIA, and the National Counter Terrorism Center without first being subjected to new minimization procedures. The scope of this remedy suggests a widespread problem of noncompliance.

 

• Finally, and perhaps most ominously, the CIA notified the court that it has a “new capability” that is “intended to help CIA personnel review large volumes of data efficiently.” This is almost certainly the application of artificial intelligence to global data collected under Section 702. The court found the application of this technology to not be a query under current statutes. Given the intermixing of American and foreign data, this is a hard judgment to trust, given the deep aperture of AI and its wide-ranging analytical capability.

 
In sum, the FISC report signed by federal judge Anthony J. Trenga gives us a glimpse of a federal intelligence bureaucracy struggling to comply with the law and its own standards, while still suffering from lapses too serious to paper over.

​An extreme measure that would give future U.S. Treasury Secretaries unprecedented authority to shut down non-profit, advocacy organizations remains a live option in Congress.
 
The “Stop Terror-Financing and Tax Penalties on American Hostages Act,” HR 9495, failed to pass the House last week. But it maintains momentum due to a little sweetener that is widely popular – a commendable side measure to offer tax relief to Americans held hostage in foreign countries. The main part of the bill would grant future U.S. Treasury Secretaries power to use secret surveillance to declare a tax-exempt, non-profit advocacy organization a supporter of foreign terrorism, and shut it down.
 
This provision, in essence, does one thing – it removes due process from existing law that allows the government to crack down on supporters of terrorist organizations. CRS reports that the IRS is already empowered to revoke the tax-exempt status of charitable organizations that provide material support to terrorist organizations, a power it has used.
                                                              
But current law also requires IRS to conduct a painstaking examination of the charge before issuing a revocation. It gives groups the ability to answer charges and to appeal decisions. But the “Stop Terror-Financing” bill would give targeted organizations a 90-day window to challenge the designation, while giving them no access to the underlying evidence behind the determination. An organization could challenge the designation in court but might not be able to access the charges against it due to the state secrets doctrine. In the meantime, being designated a terrorist-affiliate would be a death penalty for any organization and its ability to attract donors.
 
“The entire process is run at the sole discretion of the Secretary of the Treasury,” Kia Hamadanchy of the American Civil Liberties Union told the media. “So you could have your nonprofit status revoked before you ever have a chance to have a hearing.”
 
The latest attempt to pass this measure failed to reach a two-thirds majority needed to pass, with 144 Democrats and one Republican voting against it. Democrats were buoyed by a Who’s Who of liberal organizations, ranging from the ACLU to Planned Parenthood and the Brennan Center for Justice, that denounced the bill. Not surprisingly, pro-Palestinian groups were united in opposition as well.
 
But Republicans and conservatives would be well advised to consider the principled opposition to the bill by Rep. Thomas Massie (R-Ky). He surely appreciates that this power, once created, could be used by future administrations against nonprofits of all sorts. Could a conservative organization be targeted as a supporter of terrorism for advocating, for example, a settlement with Russia (certainly a state sponsor of terror) in its war against Ukraine?
 
Conservative principles and an adherence to the Constitution should begin with the notion that the government should not have the unilateral right to shut down the speech of advocacy organizations on the basis of secret evidence from surveillance, even if you despise what they advocate.
 
Conservatives would also be well-advised to consider not how this law would be used in the near future, but by future administrations. Have they forgotten Lois Lerner and the attempt to use tax law to shut down conservative advocacy groups? “We don’t need to worry about alien terrorists,” Lerner wrote in an email justifying her actions against right-leaning organizations. “It’s our own crazies that will take us down.”
 
Conservatives should be wary. This bill creates a weapon that can be aimed in any direction.

​The nomination of Tulsi Gabbard to serve as Director of National Intelligence promises to be contentious. One thing cannot be disputed: The former Congresswoman from Hawaii and lieutenant-colonel in the U.S. Army Reserve, with experience in Iraq and other dangerous countries, would bring a combination of responsible handling of secrets along with a solid record of surveillance reform.
 
Gabbard voted for the USA RIGHTS Act and other measures that would require warrants for the government to access Americans’ data and to protect personal use of encrypted apps. Rep. Gabbard also filed an amendment to the National Defense Authorization Act in 2019 to prohibit government purchases of body cameras equipped with facial recognition and other biometric devices.
 
In these and many other ways, Gabbard has compiled the record of a surveillance-reform leader. While in Congress, Gabbard served on the Homeland Security, Armed Services, and Foreign Relations Committees. A former Vice-Chair of the DNC, Gabbard made a long journey from being a staunch Democrat to supporting Donald Trump’s presidential campaign. As a private citizen, Gabbard is arguably a victim of surveillance abuse herself.
 
Her record on surveillance reform is enough to send shivers down the backs of officials in the FBI and other intelligence organizations long used to warrantless access to Americans personal information. Not surprisingly, Gabbard is now being attacked in a whisper campaign by nameless sources for being a flake who has taken pro-Russian and pro-Syria positions. Gabbard is articulate in responding to these charges, portraying herself as foreign-policy realist. We hope the Senate will keep an open mind and listen to Tulsi Gabbard’s defense.
 
Above all, we hope the Senate will consider the need to bring balance back to the intelligence community, which often helps itself to the purchased personal data of American citizens without bothering to seek a warrant. As a candidate, Donald Trump promised to reform FISA. Appointing Tulsi Gabbard to lead the intelligence community shows he’s serious about that. The next Director of National Intelligence should be someone who can restore a balance between the need to respect the constitutional rights of Americans and the need to keep America safe.

In the Paris Olympics this summer, USA’s Noah Lyles edged out Kishane Thompson of Jamaica to win the gold in the 100-meter race by 0.005 seconds, or 5 milliseconds. That’s far less than the 10th of a second, or 100 milliseconds, that it takes for the human eye to blink.
 
Now imagine if someone had snuck lead linings into the soles of Lyles’ shoes or put itching powder in his nylon vest. When a race comes down to such a slender margin, the slightest change can tip the scales.
 
A legislative version of the 100-meter dash occurred in mid-April when the U.S. House of Representatives voted 212-212 to require the FBI and other government agencies to get a warrant before inspecting the communications of Americans that get caught up in foreign surveillance programs. The warrant requirement for FISA Section 702 finally lost by a single tie-breaking vote.
 
Thanks to a Freedom of Information Act (FOIA) request from Patrick Eddington of the Cato Institute we now know that the Department of Justice did, in fact, put lead linings in the shoes of surveillance reformers.
 
Here’s what happened: In its FOIA, Cato sought audits of Section 702 programs that would show potential abuses of that program and set a deadline for March 29. On March 15, the Justice Department informed D.C. Circuit Judge Tanya Chutkan that it would be “impracticable” to have a response ready by March 29. At that time, Congressional debate was heating up. It wasn’t until July 23 that Cato finally received responsive records.
 
Though heavily redacted, the records contained two shocks.
 
The first is that one person at the FBI conducted 122 improper queries – and that the investigation into these searches were stymied when this individual abruptly left the FBI.
Had Eddington been provided this and other data from Justice’s FOIA response by March 29, he writes in The Orange County Register, “I would have immediately shared those audits and findings contained within with the House and Senate Judiciary and Intelligence Committees, along with any other interested House or Senate committees or Members, to help inform their deliberations over whether to renew the 702 program or let it die.”
 
The second shock is that Cato’s analysis of the 702 audits show that their declassification review was completed ten days before a Justice Department lawyer told Judge Chutkan that it would be “impracticable” to complete these audits before March 29. The work had already been done.
 
Cato is now filing a new FOIA that will target records on how this existing FOIA case was actually handled. In the meantime, Eddington writes, “every judge on the federal bench needs to reevaluate any presumption of regularity by executive branch officials when dealing with cases that involve government surveillance threats to the First and Fourth Amendment rights of Americans.”
​

​This year, the coalition of surveillance reformers in Washington, D.C., mounted the most spirited, bipartisan campaign in legislative history.
 
The reform coalition fought to require warrants for FISA Section 702, which authorizes the government to surveil foreign threats on foreign soil but is often used to spy on Americans. The House also passed the Fourth Amendment Is Not For Sale Act, which would forbid the warrantless collection of Americans’ personal, digital information.
 
How did we do? The Section 702 fix was lost to a single, tie-breaking vote in the House. The Fourth Amendment Is Not For Sale Act remains stuck behind last-minute business in the Senate.
 
It is easy for surveillance reformers to feel like Sisyphus, rolling legislative stones up Capitol Hill only have them come tumbling back down. But national reformers should take heart from the example set by Utah, which proves that surveillance reform is popular and that reasonable compromises can be set into law.
 
Start with geofence warrants, which use a reverse search technique to pluck the identities of criminal suspects out of pools of data extracted from a given area. The federal Fifth and Fourth Circuit Courts of Appeal have taken starkly opposite views over whether geofence warrants can be allowed. The Fifth Circuit finds them to be inherently unconstitutional. The Fourth Circuit finds them to raise no Fourth Amendment issues at all.
 
Meanwhile, the intrusion of government snooping grows. Google reports that requests for geofence warrants grew by 9,000 in 2019 to 11,500 in 2020. That number is surely much higher today.
 
When the U.S. Supreme Court inevitably wades into this issue to resolve the circuit split, the Justices would well to consider the example set by Utah. Last year, Utah passed HB57, which balances law enforcement’s protection of public safety with the privacy rights of Utahans in law enforcement’s use of geofencing.
 
Leslie Corbly of the Libertas Institute in Utah reports that as a result of this new law, police must now submit requests for geofence data to a judge for a warrant application. This new law also mandates that warrant applications must “include a notification to judges regarding the nature of a geofence search by way of a map or written description showing the size of the virtual geofence.” Results from the search must be specified and reported to the court, including not just the identification of criminal perpetrators, but also people not involved in a crime.
 
Armed with enough information to evaluate the merits of a warrant request, judges remain involved with geofence warrants throughout the process. Finally, state law enforcement agencies must report the number of geofence warrants requested, the number approved by a judge, the number of investigations that used information obtained through a geofence warrant, and the number of electronic devices used for this collection.
 
Mike Maharrey of the Tenth Amendment Center reports that Utah has “chipped away at the surveillance state,” passing laws limiting surveillance of all kinds. These include:
 

• License Plate Readers: In 2013, Utah put modest limits on Automatic License Plate Readers, keeping this data out of the market for digital information and a requirement for a warrant or disclosure order for state police to access it.

 

• Warrants for Data: Utah’s 2014 Electronic Information Privacy Act makes any electronic data obtained by law enforcement without a warrant inadmissible in a criminal trial. In addition to state-collected information, that law imposes the same constraint on data derived from the NSA and super-secret fusion centers. In 2019, Utah expanded this law to ban warrantless access to data stored in the cloud. In 2021, the state again expanded this law to require police to get warrants to search data held by communication service provider networks.

 

• Drones: In 2014, Utah slapped a search warrant requirement on data obtained from a drone. In 2022, the state expanded restrictions on drone surveillance to also include “radar, sonar, infrared, or other remote sensing or detection technology.”

 

• Geofencing: And then in February 2023, Utah passed its limits and warrant requirements on geofencing.

 
Utah demonstrates to Congress and the Supreme Court that we can place limits on surveillance while accepting reasonable access to information agencies need to protect the public. Gary Herbert, a former governor of Utah who signed many of these measures into law, said “Utah is no longer a flyover state.” When it comes to surveillance reform, Utah is a state that should lead the nation.
 
And Utah should be an inspiration to reformers in Congress to keep pushing those boulders all the way to the top of the Hill.

​While partisan control of the U.S. Senate balances on a knife’s edge, also at stake is whether that body will have more surveillance reformers and protectors of privacy, or more defenders of the government surveillance status quo.
 
We find no partisan correlation between the reformers and the defenders. Some of the most liberal/progressive and conservative candidates support reform of government surveillance programs to protect the Fourth Amendment rights of Americans and their privacy. The same diversity exists among those who stoutly defend the government’s supposed “right” to warrantlessly surveil Americans.
 
You can review the PPSA Scorecard to see how your Senators (and Representative) fare in our ratings. We rate candidates on a grading scale from F to A+ (see details below). Here we apply these grades to eight of the closest or most-watched races for the U.S. Senate in 2024. We usually rate only the incumbent in each race because most opponents either have no voting record to score or, if an opponent was previously a Member of Congress, his or her votes are usually too far in the past to be relevant.

​***Not pictured above is Former Rep. Debbie Mucarsel-Powell (D) who scored a D the 116th Congress (2019-2021).

We should note that the last Senate candidate has an exceptionally troubling record on privacy and government surveillance. Rep. Adam Schiff, former House Intelligence Committee Chairman, is now running for the open Senate seat in California and polls show him with a comfortable lead. Should Schiff come to represent all the people of California, we hope he will “see the light” and become an advocate for his constituents’ privacy. 
 
In all races, voters, volunteers and campaign donors select their candidates by their stances on many positions. PPSA hopes that, in the coming election, you will consider your candidates’ stance on vital issues of surveillance and privacy. These include:

• The Fourth Amendment Is Not for Sale Act, a measure that passed the House this year that would restrict government purchasing of Americans’ most sensitive and personal data by data brokers

 

• A commitment to vote for a requirement for warrants when government agencies look at Americans’ personal communications caught up under programs authorized by FISA Section 702. This measure comes up for debate when Section 702 authority faces renewal in 2026.

 

• The House-passed PRESS Act, which would place reasonable limits on the ability of federal prosecutors to rifle through reporters’ notes and expose their sources. Such laws work well in 49 states, balancing the needs of public safety with those of a free society.

 
Again, please refer to our Scorecard for the records of other Members.
 
As the 20th century Chicago columnist Sidney J. Harris observed: “Democracy is the only system that persists in asking the powers that be whether they are the powers that ought to be.”
 
Here are the details of our grading system:
 
“A+” = Members who voted for every major pro-privacy amendment or bill
“A” = Members who voted for privacy on 80 to 99 percent of the votes
“B” = Members who voted for privacy on 60 to 79 percent of the votes
“C” = Members who voted for privacy on 40 to 59 percent of the votes
“D” = Members who voted for privacy on 20 to 39 percent of the votes
“F” = Members who voted for privacy on 0 to 19 percent of the votes

​The year is far from over and the U.S. House of Representatives has already had a banner year on privacy and surveillance reform.
 
The House passed the Fourth Amendment Is Not for Sale Act, which would curb the purchases of Americans’ data by government agencies. It also passed the PRESS Act, which gives reporters and their sources protection from the prying of eyes of prosecutors. Finally, the House came within one vote of passing a measure to require the government to obtain a warrant before accessing Americans’ personal communications caught up in the global trawl of foreign surveillance programs authorized by FISA Section 702.
 
But will the House of the 119th Congress be able to improve on these bold, pro-privacy stands? In our PPSA Scorecard we rate how all representatives (and senators) have voted on pro-privacy amendments or bills. Below are incumbents’ ratings from the 22 closest House races:

​​Here is how evaluated these Members by their votes:

• “A+” = Members who voted for every major pro-privacy amendment or bill
• “A” = Members who voted for privacy on 80 to 99 percent of the votes
• “B” = Members who voted for privacy on 60 to 79 percent of the votes
• “C” = Members who voted for privacy on 40 to 59 percent of the votes
• “D” = Members who voted for privacy on 20 to 39 percent of the votes
• “F” = Members who voted for privacy on 0 to 19 percent of the votes

 
PPSA hopes that in the coming election, you will consider your candidates’ stance on vital issues of surveillance and privacy. Please refer to our Scorecard for the records of other Members. And don’t be shy about expressing your views on privacy and surveillance reform with your candidates.
 
As Abraham Lincoln said: “If the people turn their backs to a fire they will burn their behinds, and they will just have to sit on their blisters.”

​As the 2024 elections loom, legislative progress in Congress will likely come to a crawl before the end of meteorological summer. But some unfinished business deserves our attention, even if it should get pushed out to a lame duck session in late fall or to the agenda of the next Congress.
 
One is a bipartisan proposal now under review that would forbid federal government agencies from strong-arming technology companies into providing encryption keys to break open the private communications of their customers.
 
“Efforts to give the government back-door access around encryption is no different than the government pressuring every locksmith and lock maker to give it an extra key to every home and apartment,” said Erik Jaffe, President of PPSA.
 
Protecting encryption is one of the most important pro-privacy measures Congress could take up now. Millions of consumers have enjoyed end-to-end encryption, from Apple iPhone data to communications apps like Telegram, Signal, and WhatsApp. This makes their communications relatively invulnerable to being opened by an unauthorized person. The Department of Justice has long demanded that companies, Apple especially, provide the government with an encryption key to catch wrong-doers and terrorists.
 
The reality is that encryption protects people from harm. Any encryption backdoor is bound to get out into the wild. Encryption protects the abused spouse from the abuser. It protects children from malicious misuse of their messages. Abroad, it protects dissidents from tyrants and journalists from murderous cartels. At home, it even protects the communications of law enforcement from criminals. The case for encryption is so strong the European Court of Human Rights rejected a Russian law that would have broken encryption because it would violate the human right to privacy. (Let us hope this ruling puts the breaks on recent measures in the UK and the EU to adopt similarly intrusive measures.)
 
Yet the federal government continues to demand that private companies provide a key to their encryption. The State of Nevada’s attorney general went to court to try to force Meta to stop offering encrypted messages on Facebook Messenger on the theory that it will protect users under 18, despite the evidence that breaking encryption exposes children to threats.
 
PPSA urges the House to draft strong legislation protecting encryption, either as a bill or as an amendment. It is time for the people’s representatives to get ahead of the jawboning demands of the government to coerce honest businesses into giving away their customers’ keys.

In 2024, champions of surveillance reform in the House passed the Fourth Amendment Is Not For Sale Act – which would force government agencies to obtain probable cause warrants before collecting Americans’ most sensitive and personal data scraped from apps and sold by data brokers.
 
House passage of this measure creates powerful momentum for this major surveillance reform, in the next Congress if not in this one.
 
Congress also imposed strong reporting and accountability measures on the FBI.
 
The Bureau must now report the number of times it searches, or “queries,” the communications of Americans in FISA Section 702 databases. This reform amendment 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 – something Jim Jordan, Chairman of the Judiciary Committee, (R-OH) and Ranking Member Jerry Nadler, (D-NY), are publicly planning to do.
 
Congress did reauthorize Section 702, the foreign intelligence surveillance authority, without requiring warrants to examine queries of the communications of Americans caught up in this global data trawl. Even here, however, there were bright spots. The advocates of the intelligence community avoided a warrant requirement for surveillance of Americans by the narrowest margin – the breaking of a tie vote. And champions of reform succeeded in moving the next reauthorization of Section 702 from five years to two years.
 
As a result of this close vote and narrow window, debate is already well underway on ways to improve Section 702.
 
On the negative side, House Intelligence Committee leaders managed to insert into Section 702 reauthorization a measure we called “Make Everyone a Spy” – now law – that requires many businesses with internet-related communications equipment to allow warrantless inspection of customer data. At this writing, efforts are underway to narrow this provision.

Champions of Reform

Throughout this year, many Members stepped forward to take a strong, bold stance for surveillance reform. These include:

• House Judiciary Chairman Jim Jordan, (R-OH) and Ranking Member Jerry Nadler, (D-NY) for shepherding strong legislation through the House Judiciary Committee and for their forceful advocacy for privacy rights.

​

• Rep. Warren Davidson (R-OH), who headed the successful effort to pass the Fourth Amendment Is Not For Sale Act through the House.

 

• Rep. Chip Roy (R-TX), who succeeded in adding the regular reporting requirements on Section 702 inquiries by the FBI.

 

• Rep. Andy Biggs (R-AZ), who stood tall in the House for adding warrants to Section 702 queries and came within one vote of winning.  

​

• Rep. Ben Cline (R-VA), who succeeded in ending collection of surveillance of third-party mentions, or “abouts” information.

Other prominent and diligent House surveillance reformers include:
   

• Rep. Sara Jacobs, (D-CA)

 

• Rep. Tom Massie (R-KT)

 

• Rep. Darrell Issa, (R-CA)

• Rep. Zoe Lofgren, (D-CA)
  

​
In the Senate:

• Sen. Dick Durbin, (D-IL) Chairman of the Judiciary Committee, stood up for warrants for Americans’ private communications.

 

• In this effort Chairman Durbin had the strong, bipartisan support of Sen. Mike Lee (R-UT) and Sen. Ron Wyden (D-OR).

​

• Sen. Rand Paul (R-KY) was a strong advocate for the Senate passage of the Fourth Amendment Is Not For Sale Act.

​Millions of small business owners are about to be hit with a nasty surprise. The Corporate Transparency Act, which passed Congress as part of the must-pass National Defense Authorization Act of 2021, goes into effect this year. Advertised as a way to combat money laundering, this new law now requires small businesses to report their “beneficial owners” to the U.S. Department of Treasury’s Financial Crimes Enforcement Network (FinCEN).
 
This reporting requirement falls on any small business with fewer than 20 employees to reveal its “beneficial owner.” In plain English, this means a small business must give the government the name of anyone who controls or has a 25 percent or greater interest in that business. By Jan. 1, 2025, small businesses must submit the full legal name, date of birth, current residential or business address, and a unique identifier from a government ID of all its beneficial owners. There are significant privacy risks at stake in this seemingly innocuous law, beginning with the widespread access multiple federal agencies will have to this new database.
 
This law, which covers 32 million existing companies and will suck in an additional 5 million new companies every year, threatens anyone who makes a mistake or files an incomplete submission with up to $10,000 in fines and up to two years in prison. “The CTA will potentially make a felon out of any unsuspecting person who is simply trying to make a living in his or her own lawful business or who is trying to start one and makes a simple mistake for violations,” says the National Small Business Association (NSBA).
 
The “beneficial ownership” provision is one more way for the federal government to break down the walls of financial privacy in its quest to comprehensively track Americans’ finances. Consider another big bill, the recent Infrastructure Investment and Jobs Act of 2021, which requires $10,000 or more in cryptocurrency transactions to be reported to the government within 15 days. Incorrect or missing information may result in a $25,000 fine or five years in prison.
 
In addition, the CATO Institute reports that new regulations under consideration would hold financial advisors accountable to “elements of the Bank Secrecy Act, which currently compels banks to turn over certain financial data to the feds.” It is likely that your financial advisor will soon be required to snitch on you. This undermines the whole concept of a fiduciary, someone who is by law supposed to be loyal to your interests.
 
All of these measures are justified by the quest to track the money networks of criminals, terrorists, and drug dealers. But the data these authorities generate will be available, without a warrant, to the IRS, the FBI, the ATF, the Department of Homeland Security, and just about any agency that wants to investigate you for your personal activities or statements that some official deems suspicious.
 
The CTA’s “beneficial ownership” provision represents a new assertion by the federal government over small business. Since before the Constitution, the regulation of small business has been under the purview of the states. Now Washington is assembling a database with which it can heap new regulations on small business regardless of state policies.
 
The NSBA, which is challenging this law in court, estimates that complexities in business ownership will require companies to spend an average of $8,000 a year to comply with this law. NSBA’s lawsuit is moving forward with a named plaintiff, Huntsville business owner Isaac Winkles, in a federal lawsuit. NSBA and Winkles won summary judgment from Judge Liles Burke of the U.S. District Court of the Northern District of Alabama, who held the beneficial owner requirement to be unconstitutional because it exceeds the enumerated powers of Congress.
 
While the government appeals its case to the Eleventh Circuit, FinCEN maintains that it will only exclude small businesses from this requirement if they were members of NSBA on or before March 1. These encroachments are steady and their champions on the Hill are growing bolder in financial surveillance. The good news is that privacy activists have just acquired 32 million new allies.

​Why did the “unmasking” of Americans’ identities in the global data trawl of U.S. intelligence agencies increase by 172 percent, from 11,511 times in 2022 to 31,330 times in 2023?
 
Government officials briefing the media say that most of this increase was a defensive response to a hostile intelligence agency launching a massive cyberattack on U.S. infrastructure, possibly infiltrating the digital systems of dams, power plants, or the like. What we do know for sure is that this authority has been abused before.
 
Unmasking occurs when American citizens or “U.S. persons” are caught up, incidentally, in warrantless foreign surveillance. When this happens, the identities of these Americans are routinely hidden from government agents, or “masked.” But senior officials can request that the NSA “unmask” those individuals.
 
This should be a relatively rare occurrence. Yet for some reason, over a 12-month period between 2015 and 2016, the Obama Administration unmasked 9,217 persons. Former UN Ambassador Samantha Power, or someone acting in her name, was a prolific unmasker. Power’s name was used to request unmasking of Americans more than 260 times.
 
Large-scale unmasking continued under the Trump administration, with 2018 seeing 16,721 unmaskings, an increase of 7,000 from the year before. In recent years, the number hovered around 10,000. Now it is three times that many. This is a concern if some subset of these unmaskings (which mostly involve an email account or IP address, not a name) were for named individuals for political purposes. Consider that in 2016, at least 16 Obama administration officials, including then-Vice President Joe Biden, requested unmaskings of Donald Trump’s advisors. Outgoing National Security Advisor Susan Rice took a particular interest in unmasking members of President-elect Trump’s transition team.
 
We are left to wonder if all of this rise in unmasking numbers can be explained away by Chinese or Russian hackers, or if some portion of them reflect the use of this authority for political purposes. Were prominent politicians, officeholders, or candidates unmasked?
 
These raw numbers come from the government’s Annual Statistical Transparency report. This report on intelligence community activities from the Office of the Director of National Intelligence offers revealing numbers, but often without detail or explanation that would explain such jumps. All we have to rely on are media briefs that at times seem more forthcoming than the briefings available to Members of Congress, even those tasked with oversight of intelligence agencies in the House and Senate Judiciary Committees.
 
As these numbers rise, the American people deserve more information and a solid assurance that these authorities will never again be used for political purposes by either party.

​We needed a little perspective before reporting on the historic showdown on the reauthorization of FISA Section 702 that ended on April 19 with a late-night Senate vote. The bottom line: The surveillance reform coalition finally made it to the legislative equivalent of the Super Bowl. We won’t be taking home any Super Bowl rings, but we made a lot of yardage and racked up impressive touchdowns.
 
For years, PPSA has coordinated with a wide array of leading civil liberties organizations across the ideological spectrum toward that key moment. We worked hard and enjoyed the support of our followers in flooding Congress with calls and emails supporting privacy and surveillance reform.
 
So what was the result? We failed to get a warrant requirement for Section 702 data but came within one vote of winning it in the House. There was a lot of good news and new reforms that should not be overlooked. And where the news was bad, there are silver linings that gleam.

• Best of all – and the intelligence community hates this – we succeeded in reducing the deadline for the next reauthorization of Section 702 from five years to two. We also got the date of reauthorization moved from the end of the year, when legislative priorities tend to get lost in the press of late business, to April in even (election) years.

 

• An important 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 time the FBI searches, “or queries,” the communications of Americans in Section 702 databases. It 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.

 

• The worst event of this round was that the “Make Everyone a Spy” amendment passed. Signed into law by President Biden, this measure allows the government to force a wide range of small businesses to help the NSA in its spying, and it gags them to prevent them from revealing it. This measure passed only after a pinkie promise from Attorney General Merrick Garland to enforce it narrowly. Sen. Mark Warner, Chairman of the Senate Select Committee on Intelligence, said he would support revising the bill’s vague language. Our coalition will closely watch the Department of Justice and take up Sen. Warner’s promise to tighten the language of this amendment. We will hold them to account.

 

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

 

• We secured dozens of reforms of the FISA process for both Section 702 and Title I surveillance, including:

 

• The FBI can no longer rely on press reports or political opposition research to seek surveillance orders from the secret FISA Court.

 

• The numbers of FBI personnel who can make Section 702 queries has been massively reduced, with independent audits of every U.S. person query.

 

• FBI agents who lie to the FISA Court will be fired or suspended without pay. Leaking a secret FISA application will result in 10 years in prison and or a $250,000 fine. FBI personnel who lie to the FISA Court – as FBI lawyer Kevin Clinesmith did when he altered a document about Carter Page and submitted it as evidence – will face 10 years in prison and/or a $250,000 fine.

 

• 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.

 
We come out of this legislative fracas bloodied but energized. We put together a durable left-right coalition in which House Judiciary Committee Chairman Jim Jordan and Ranking Member Jerry Nadler, as well as the heads of the Freedom and Progressive caucuses, who worked side-by-side. For the first time, our surveillance coalition had the intelligence community and their champions on the run. We lost the warrant provision for Section 702 only by a tie vote. Had every House Member who supported our position been in attendance, we would have won. This bodes well for the next time Section 702 reauthorization comes up.
 
We will be ready.
 
Let’s not forget that 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.

​The risks and benefits of reverse searches are revealed in the capital murder case of Aaron Rayshan Wells. Although a security camera recorded a number of armed men entering a home in Texas where a murder took place, the lower portions of the men’s faces were covered. Wells was identified in this murder investigation by a reverse search enabled by geofencing.
 
A lower court upheld the geofence in this case as sufficiently narrow. It was near the location of a homicide and was within a precise timeframe on the day of the crime, 2:45-3:10 a.m. But ACLU in a recent amicus brief identifies dangers with this reverse search, even within such strict limits. What are the principles at stake in this practice?
 
Let’s start with the Fourth Amendment, which places hurdles government agents must clear before obtaining a warrant for a search – “no warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The founders’ tight language was formed by experience. In colonial times, the King’s agents could act on a suspicion of smuggling by ransacking the homes of all the shippers in Boston. Forcing the government to name a place, and a person or thing to be seized and searched, was the founders’ neat solution to outlawing such general warrants altogether.
 
It was an ingenious system, and it worked well until Michael Dimino came along.
 
In 1995, this inventor received a patent for using GPS to locate cellphones. Within a few years, geofencing technology could instantly locate all the people with cellphones within a designated boundary at a specified time. This was a jackpot for law enforcement. If a bank robber was believed to have blended into a crowd, detectives could geofence that area and collect the phone numbers of everyone in that vicinity. Make a request to a telecom service provider, run computer checks on criminals with priors, and voilà, you have your suspect. Thus the technology-enabled practice of conducting a “reverse search” kicked into high gear.
 
Multiple technologies assist in geofenced investigations. One is a “tower dump,” giving law enforcement access to records of all the devices connected to a specified cell tower during a period of time.
 
Wi-Fi is also useful for geofencing. When people connect their smartphones to Wi-Fi networks, they leave an exact log of their physical movements. Our Wi-Fi data also record our online searches, which can detail our health, mental health, and financial issues, as well intimate relationships, and political and religious activities and beliefs.
 
A new avenue for geofencing was created on Monday by President Biden when he signed into a law a new measure that will give the government the ability to tap into data centers. The government can now enlist the secret cooperation of the provider of “any” service with access to communications equipment. This gives the FBI, U.S. intelligence agencies, and potentially local law enforcement a wide, new field with which to conduct reverse searches based on location data.
 
In these ways, modern technology imparts an instant, all-around understanding of hundreds of people in a targeted area, at a level of intimacy that Colonel John André could not have imagined. The only mystery is why criminals persist in carrying their phones with them when they commit crimes.
 
Google was law enforcement’s ultimate go-to in geofencing. Warrants from magistrates authorizing geofence searches allowed the police to obtain personal location data from Google about large numbers of mobile-device users in a given area. Without any further judicial oversight, the breadth of the original warrant was routinely expanded or narrowed in private negotiations between the police and Google.
 
In 2023, Google ended its storage of data that made geofencing possible. Google did this by shifting the storage of location data from its servers to users’ phones. For good measure, Google encrypted this data. But many avenues remain for a reverse search.
 
On one hand, it is amazing that technology can so rapidly identify suspects and potentially solve a crime. On the other, technology also enables dragnet searches that pull in scores of innocent people, and potentially makes their personal lives an open book to investigators. ACLU writes:
 
“As a category, reverse searches are ripe for abuse both because our movements, curiosity, reading, and viewing are central to our autonomy and because the process through which these searches are generally done is flawed … Merely being proximate to criminal activity could make a person the target of a law enforcement investigation – including an intrusive search of their private data – and bring a police officer knocking on their door.”
 
Virginia judge Mary Hannah Lauck in 2022 recognized this danger when she ruled that a geofence in Richmond violated the Fourth Amendment rights of hundreds of people in their apartments, in a senior center, people driving by, and in nearby stores and restaurants. Judge Lauck wrote “it is difficult to overstate the breadth of this warrant” and that an “innocent individual would seemingly have no realistic method to assert his or her privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a ‘right without a remedy.’”
 
ACLU is correct that reverse searches are obvious violations of the plain meaning of the Fourth Amendment. If courts continue to uphold this practice, however, strict limits need to be placed on the kinds of information collected, especially from the many innocent bystanders routinely caught up in geofencing and reverse searches. And any change in the breadth of a warrant should be determined by a judge, not in a secret deal with a tech company.

​An amendment to require the FBI and other federal agencies to obtain a probable cause warrant before accessing Americans’ communications under FISA Section 702 fell one vote short in the U.S. House of Representatives on Friday.
 
This was a disappointment, made worse by an expansion of the government’s surveillance powers contained in the bill. The House vote includes a change in the definition of an electronic communication service provider to require a whole new range of businesses to assist the government in its spying.
 
But there was also good news.
 
Pressure from reformers did succeed in changing Section 702 reauthorization from five years to two years. The House also passed a measure from Rep. Chip Roy (R-TX) that requires the FBI to give Congress a quarterly report on the number of U.S. person queries conducted. The combination of a shorter period before the next reauthorization and the strengthened oversight of the FBI should serve notice on the FBI and other agencies not to return to their lax treatment of Americans’ privacy and constitutional rights.
 
Reform received another win on Friday with the passage of an amendment sponsored by Rep. Ben Cline (R-VA) that makes permanent the suspended intelligence practice of “abouts” collection, in which Americans were targeted for merely being mentioned in a communications. Abuse of “abouts” collection prompted the FISA Court to publicly excoriate the National Security Agency for an “institutional lack of candor” about a “very serious Fourth Amendment issue.”
 
PPSA joins our civil liberties peers in calling on the Senate to reject any reauthorization that continues Section 702 programs without a warrant requirement for Americans. A recent YouGov poll shows that almost 80 percent of Americans support the warrant requirement. The signals for reform are growing stronger – the American people and a growing coalition in Congress have had enough of Washington’s surveillance abuse.

Forbes reports that federal authorities were granted a court order to require Google to hand over the names, addresses, phone numbers, and user activities of internet surfers who were among the more than 30,000 viewers of a post. The government also obtained access to the IP addresses of people who weren’t logged onto the targeted account but did view its video.
 
The post in question is suspected of being used to promote the sale of bitcoin for cash, which would be a violation of money-laundering rules. The government likely had good reason to investigate that post. But did it have to track everyone who came into contact with it?
 
This is a prime example of the government’s street-sweeper shotgun approach to surveillance. We saw this when law enforcement in Virginia tracked the location histories of everyone in the vicinity of a robbery. A state judge later found that search meant that everyone in the area, from restaurant patrons to residents of a retirement home, had “effectively been tailed.”
 
We saw the government shotgun approach when the FBI secured the records of everyone in the Washington, D.C., area who used their debit or credit cards to make Bank of America ATM withdrawals between Jan. 5 and Jan. 7, 2021.
 
We also saw it when the FBI, searching for possible foreign influence in a congressional campaign, used FISA Section 702 data – meant to surveil foreign threats on foreign soil – to pull the data of 19,000 political donors.
 
Surfing the web is not inherently suspicious. What we watch online is highly personal, potentially revealing all manner of social, romantic, political, and religious beliefs and activities. The Founders had such dragnet-style searches precisely in mind when they crafted the Fourth Amendment. Simply watching a publicly posted video is not by itself probable cause for search. It should not compromise one’s Fourth Amendment rights.

Byron Tau – journalist and author of Means of Control, How the Hidden Alliance of Tech and Government Is Creating a New American Surveillance State – discusses the details of his investigative reporting with Liza Goitein,  senior director of the Brennan Center for Justice's Liberty & National Security Program, and Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability. 

Byron explains what he has learned about the shadowy world of government surveillance, including how federal agencies purchase Americans’ most personal and sensitive information from shadowy data brokers. He then asks Liza and Gene about reform proposals now before Congress in the FISA Section 702 debate, and how they would rein in these practices. ​

​A federal court has given the go-ahead for a lawsuit filed by Just Futures Law and Edelson PC against Western Union for its involvement in a dragnet surveillance program called the Transaction Record Analysis Center (TRAC).
 
Since 2022, PPSA has followed revelations on a unit of the Department of Homeland Security that accesses bulk data on Americans’ money wire transfers above $500. TRAC is the central clearinghouse for this warrantless information, recording wire transfers sent or received in Arizona, California, New Mexico, Texas, and Mexico.  These personal, financial transactions are then made available to more than 600 law enforcement agencies – almost 150 million records – all without a warrant.
 
Much of what we know about TRAC was unearthed by a joint investigation between ACLU and Sen. Ron Wyden (D-OR). In 2023, Gene Schaerr, PPSA general counsel, said: “This purely illegal program treats the Fourth Amendment as a dish rag.”
 
Now a federal judge in Northern California determined that the plaintiffs in Just Future’s case allege plausible violations of California laws protecting the privacy of sensitive financial records. This is the first time a court has weighed in on the lawfulness of the TRAC program. We eagerly await revelations and a spirited challenge to this secretive program.
 
The TRAC intrusion into Americans’ personal finances is by no means the only way the government spies on the financial activities of millions of innocent Americans. In February, a House investigation revealed that the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN) has worked with some of the largest banks and private financial institutions to spy on citizens’ personal transactions. Law enforcement and private financial institutions shared customers’ confidential information through a web portal that connects the federal government to 650 companies that comprise two-thirds of the U.S. domestic product and 35 million employees.
 
TRAC is justified by being ostensibly about the border and the activities of cartels, but it sweeps in the transactions of millions of Americans sending payments from one U.S. state to another. FinCEN set out to track the financial activities of political extremists, but it pulls in the personal information of millions of Americans who have done nothing remotely suspicious.
 
Groups on the left tend to be more concerned about TRAC and groups on the right, led by House Judiciary Chairman Jim Jordan, are concerned about the mass extraction of personal bank account information. The great thing about civil liberties groups today is their ability to look beyond ideological silos and work together as a coalition to protect the rights of all.
 
For that reason, PPSA looks forward to reporting and blasting out what is revealed about TRAC in this case in open court. Any revelations from this case should sink in across both sides of the aisle in Congress, informing the debate over America’s growing surveillance state.

​The reform coalition on Capitol Hill remains determined to add strong amendments to Section 702 of the Foreign Intelligence Surveillance Act (FISA). But will they get the chance before an April 19th deadline for FISA Section 702’s reauthorization?
 
There are several possible scenarios as this deadline closes. One of them might be a vote on the newly introduced “Reforming Intelligence and Securing America” (RISA) Act. This bill is a good-faith effort to represent the narrow band of changes that the pro-reform House Judiciary Committee and the status quo-minded House Permanent Select Committee on Intelligence could agree upon.
 
But is it enough? RISA is deeply lacking because it leaves out two key reforms.
 

• It excludes the principal reform of the House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act – leaving intact the ability of the FBI and other agencies to continue to use Section 702 data to perform baseless searches on Americans. These searches have been performed on Members of Congress, 19,000 donors to a congressional campaign, and tens of thousands of protestors on the left and right. Reformers want a warrant before agencies can collect Americans’ communications, as the Fourth Amendment requires.

 

• The bill does not close another loophole through which the FBI, IRS, Department of Homeland Security, and other federal agencies purchase and warrantlessly access the personal information of Americans. This data broker loophole gives the government access to Americans’ health, financial, romantic, religious, and political lives. If Congress cannot reform this practice with a warrant requirement, most other reforms will be meaningless.

 
The bill does include a role for amici curiae, specialists in civil liberties who would act as advisors to the secret FISA court. RISA, however, would limit the issues these advisors could address, well short of the intent of the Senate when it voted 77-19 in 2020 to approve the robust amici provisions of the Lee-Leahy amendment.
 
For all these reasons, reformers should see RISA as a floor, not as a ceiling, as the Section 702 showdown approaches. The best solution to the current impasse is to stop denying Members of Congress the opportunity for a straight up-or-down vote on reform amendments.