​Last year brought surveillance reform achingly close to passage. The Fourth Amendment Is Not for Sale Act – which would have forced the government to obtain a warrant before purchasing Americans’ personal data from data brokers – passed the U.S. House but died in the U.S. Senate. A warrant requirement for the review of Americans’ personal data fell short in the House in a tie vote.

Now, we know that these were uphill votes not just because of the intense opposition of federal intelligence agencies, but because the Biden White House had overseen an intense lobbying effort to give the illusion of grassroots opposition from state law enforcement.

To create this illusion, the administration reached out to local and federal law enforcement alike with pre-approved talking points from a Washington lobbying firm, letters to sign, and a list of lawmakers to target.

The efforts involved the misuse of High Intensity Drug Trafficking Areas (HIDTAs). These are hybrid federal-state entities intended to provide coordination and ensure the efficient use of federal funds in fighting organized drug crime. The federal side of this partnership is directly overseen by the White House Office of National Drug Control Policy.

A response to a PPSA Freedom of Information Act (FOIA) request reveals that during the prior 118th Congress, these organizations were repurposed for lobbying Congress. Emails from the Chicago HIDTA piggybacked off efforts from a Capitol Hill lobbying firm and orchestrated all the elements of what would appear to a Member of Congress to be a spontaneous grassroots movement by state law enforcement groups and associations in opposition to popular surveillance reform amendments.

This network of federal agencies working behind the scenes to coordinate this messaging, under the purview of the White House, distorted the debate and abused Congressional trust in sincere-sounding letters to Congressional leaders like Rep. Jim Jordan, Chairman of the House Judiciary Committee, and Rep. Jerry Nadler, Ranking Member. Given that HIDTAs are distribution points for significant amounts of much-needed federal funding, it’s questionable how voluntary the sign-on from state law enforcement groups really was.
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Perhaps Chairman Jordan and Ranking Member Nadler might want to look into how much federal money might have been spent limiting their oversight. At the very least, the current administration should cut off federal funds for lobbying before the surveillance reform debate begins again next year.

Sen. Rand Paul (R-KY) celebrated the termination of the “Quiet Skies” surveillance program in which U.S. Marshals posed as airline passengers to shadow targets.

This $200 million a year program did not, according to the Department of Homeland Security, stop a single terrorist attack. But, in the words of Sen. Paul in The American Conservative, it “was an unconstitutional dystopian nightmare.” Sen. Paul writes:

“According to Department of Homeland Security documents I obtained, former Congresswoman and now Director of National Intelligence Tulsi Gabbard was surveilled under the program while flying domestically in 2024. Federal Air Marshals were assigned to monitor Gabbard and report back on their observations including her appearance, whether she used electronics, and whether she seemed ‘abnormally aware’ of her surroundings. She wasn’t suspected of terrorism. She wasn’t flagged by law enforcement. Her only crime was being a vocal critic of the administration. What an insanely invasive program – the gall of Big Brother actually spying on a former congresswoman. It’s an outrageous abuse of power … 

“And perhaps the most absurd of all, the wife of a Federal Air Marshal was labeled a ‘domestic terrorist’ after attending a political rally. She had a documented disability and no criminal record. Still, she was placed under Special Mission Coverage and tracked on commercial flights – even when accompanied by her husband, who is himself a trained federal law enforcement officer. She remained on the watchlist for more than three years. To make matters worse, this case resulted in the diversion of an Air Marshal from a high-risk international mission ...
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“Liberty and security are not mutually exclusive. When government hides behind secrecy to justify surveillance of its own people, it has gone too far."

In the intelligence business, “tradecraft” is the professional use of techniques, methods, and technologies to evaluate a purported threat. When an official finding is made that a threat assessment memo lacks tradecraft standards, that is a hard knock on the substance of the memo and the agent who wrote it.
 
Thanks to the efforts of Sen. Chuck Grassley (R-IA) and the forthcoming response from FBI Director Kash Patel, we now know that the infamous memo from the Richmond, Virginia, field office targeting “radical traditional Catholics” was riddled with conceptional errors and sloppy assumptions. In the FBI’s own judgment, it showed poor tradecraft. Worse, the impact of this assessment of traditional Catholics was rooted in smears from the Southern Poverty Law Center (SPLC), which Sen. Grassley correctly calls “thoroughly discredited and biased.”
 
Contrary to dismissive statements from former FBI Director Christopher Wray, this memo wasn’t the product of one field office. In its preparation, the Richmond, Virginia, field office consulted with Bureau offices in Louisville, Portland, and Milwaukee to paint Catholics who adhere to “conservative family values/roles” as being as dangerous as Islamist jihadists. Sen. Grassley’s document reveal also shows that there were similar efforts in recent years in Los Angeles and Indianapolis.
 
This memo was not a mere thought experiment. It was a predicate for surveillance. Among the activities we know about that resulted from this memo were attempts to develop a priest and a choir director into FBI informants on parishioners.
 
Sen. Grassley also produced a memo from Tonya Ugoretz, FBI Assistant Director, Directorate of Intelligence, acknowledging that the Southern Poverty Law Center’s (SPLC) list of hate groups – and lack of explanation for its threshold in slapping such a label on organizations and people – went unexamined by this Richmond memo. Yet that original memo from the Richmond field office found SPLC as a trustworthy source to assert that there will be a “likely increase” in threats from “radical traditional Catholics” in combination with “racially and ethnically-motivated violent extremism.”
 
Another memo produced by Sen. Grassley reveals the conclusion of the FBI’s Directorate of Intelligence: “The SPLC has a history of having to issue apologies and retract groups and individuals they have identified as being extremist or hate groups.” Now Sen. Grassley and Sen. James Lankford (R-OK) are appealing to the FBI to direct field offices not to rely on the characterizations of the SPLC.
 
This whole episode should serve as a reminder that merely opening an investigation of a religious group for its First Amendment-protected speech is a punishment in itself, at best violating practitioners’ privacy; at worst, incurring huge legal costs and anxiety.
 
Sen. Grassley deserves the gratitude of the surveillance-reform community for bringing to light the extent to which the FBI allowed America’s culture wars to become a predicate for suspicion of law-abiding Americans.

HBO’s hit series Westworld wasn’t actually about replicating the old West, but a cautionary tale about the new frontier of artificial intelligence.

It didn’t end well. For the humans, that is. The third season’s big reveal was a sinister-looking AI sphere the size of a building, called Rehoboam. It was shaped like a globe for a very good reason – it determined the destinies of every person in the world. It predicted and manipulated human behavior and life paths by analyzing massive amounts of personal data – effectively controlling society by assigning roles, careers, and even relationships to people, all in the name of preserving order.

The American government – yes, you read that correctly – America, not China, is plotting to build its own version of Rehoboam. Its brain trust will be Palantir, the AI power player recently called out in the Daily Beast with the headline, “The Most Terrifying Company in America Is Probably One You’ve Never Heard Of.”

In March of this year, President Trump issued Executive Order 14243: “Stopping Waste, Fraud, and Abuse by Eliminating Information Silos.” The outcome will be a single database containing complete electronic profiles of every soul in the United States. And all of it is likely to be powered by Palantir’s impenetrable, proprietary AI algorithms.

Reason got to the heart of what’s at stake: an AI database on such a massive scale is only nominally about current issues such as tracking illegal immigrants. It’s really about the government’s ability to profile anyone, anytime, for any purpose.

With a billion dollars in current federal contracts across multiple agencies, Palantir is currently in talks with Social Security and the IRS. Add that to existing agreements with the Departments of Defense, Health and Human Services, Homeland Security, and others. Add to that the Biden administration’s previous contract with Palantir to assist the CDC with vaccine distribution during the pandemic.

While the primary arguments in favor of such an Orwellian construct are commendable-sounding goals like a one-shop stop for efficiency, PPSA and our pro-privacy allies find such thinking – at best – appallingly naïve.

And at worst? There’s an applicable aphorism here: “This is a bad idea because it’s obviously a bad idea.” Let’s not kid ourselves – this is the desire for control laid bare, and its results will not be efficiency, but surveillance and manipulation. It makes sense for Treasury to know your tax status or State to know your citizenship status. But a governmentwide database, accessible without a warrant by innumerable government agents, is potentially the death knell for privacy and the antithesis of freedom.

Think of all the government already knows about you, your family, and friends across multiple federal databases. All this data is about to be mobilized into one single, easily searchable database, containing everything from disability status and Social Security payments to personal bank account numbers and student debt records to health history and tax filings – plus other innumerable and deeply personal datapoints ad infinitum.

Simply put, this database will put together enough information to assemble personal dossiers on every American.

It is bad enough to think any U.S. government employee in any agency will have access to all of your data in one central platform. But at least those individuals would theoretically authorized for such access. Not so the Russian and Chinese cyberhackers who’ve already demonstrated the ability to lift U.S. databases in toto.
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If that ever happens with this database, it will truly become a matter of one-stop shopping.

If we were writing a techno thriller set in modern-day New Orleans, we’d use the catchy title above and include these basic plot points – all of them real:
​

• A private nonprofit is selling AI-powered facial recognition technology capable of analyzing faces in real time. It uses powerful hardware and software made by a Chinese company called Dahua, banned by the Federal Communications Commission. More than 200 AI-powered cameras are spread around areas of the city considered high crime. The nonprofit is the brainchild of a former NOPD officer who says he built the database using 30,000 faces from mugshots and other publicly available records. But with no transparency or audits, the true nature of the database and its algorithms remain opaque.

• The cameras are owned by individuals and businesses in addition to the nonprofit, which subsidizes the cost. As a private network, it operates outside the realm of public accountability. The nonprofit operates under the innocuous title “Project NOLA.” It’s funded by donations and other private sources.

• Perhaps sensing an opportunity to bypass legal requirements for reporting and oversight, the New Orleans PD engages Project NOLA. No city contract. No fees. No legal reviews. In theory at least, Project NOLA does all the work, and the police are simply informed (although they can request footage and ask Project NOLA to look for someone).

• The system is fast and sophisticated, even capable of handling low-light conditions and poor camera angles (at up to 700 feet away from a target). It is effectively a real-time general surveillance tool, scanning faces on streets for any matches in its database. If it finds one, officers immediately receive alerts via an app. If someone’s face isn’t already in the database, Project NOLA can upload an image and recorded feeds can be searched for the past 30 days, retracing one’s movements.

• The project runs for two years before the Washington Post exposed the operation through records requests (and the fact that Project NOLA’s owner would sometimes post on Facebook). Police make dozens of arrests in that time, but because Project NOLA is a private operation, there is no way to know what other steps (if any) were taken in pursuit of due process, nor is there any data on potential misidentifications.

• The entire arrangement appears to run deeply afoul of a New Orleans city ordinance limiting use of facial recognition software to cases involving violent crime. It also completely bypassed the required use of the state’s crime investigation “fusion” center (so named because various law enforcement agencies can collaborate), where experts have to agree that an image matches a potential suspect.

The central crisis of our thriller will surely involve innocent citizens caught up in a dragnet of unbridled police authority, the thwarting of civilian oversight, and a complete disregard for constitutional rights.
 
And the dénouement? We hope it involves NOPD Superintendent Anne Kirkpatrick stepping up and doing what she told the Washington Post: “We’re going to do what the ordinance says and the policies say, and if we find that we’re outside of those things, we’re going to stop it, correct it and get within the boundaries of the ordinance.”
 
Meanwhile, next time you’re on Bourbon Street, wear a Star Wars style cloak that covers your face. And be careful what “establishments” you frequent.

​The FBI’s recent shuttering of its Office of Internal Auditing – a unit formed to oversee compliance with surveillance protocols under Section 702 of the Foreign Intelligence Surveillance Act – should raise alarms in Congress. This office was created in 2020 in response to significant and well-documented abuses of surveillance authority, including improper queries of Americans’ data without warrants. Now, amidst broader structural reorganization, its dissolution risks dismantling a key internal check just as the program it was meant to monitor is up for reauthorization.
 
It might just be a bureaucratic reshuffling. Yet the unit’s functions are being absorbed into the inspection division – a body also tasked with policing agent misconduct and shootings – without clear evidence that the rigorous, daily compliance activities once prioritized will be maintained. Let us hope this move leads to continued oversight, and not a gutting of oversight.
 
Congress should take this as a wake-up call. Internal guardrails inside the intelligence agencies, no matter how earnestly established, are an inherently unreliable substitute for oversight. Agencies like the FBI require external accountability to ensure their immense powers are not misused. The very creation of the auditing office was a tacit admission that prior oversight had failed. That failure was documented in audits revealing widespread misuse of Section 702 queries against Americans, including members of Congress and political protestors.
 
As we wrote in a different context, the Department of Justice recently demonstrated how easily internal policy can be sidestepped. In 2023, the FBI raided the home of journalist Tim Burke, seizing his devices and potentially sensitive journalistic material. This raid occurred despite the DOJ’s then-year-old News Media Policy, which forbade such seizures unless under extreme and clearly justified circumstances.
 
Congress must recognize that internal oversight mechanisms are not enough. What’s needed now is sustained, bipartisan legislative oversight that ensures intelligence agencies operate within the bounds set by law. When compliance offices can be erased with the stroke of a pen and transparency rules are brushed aside without consequence, the only reliable safeguard is direct accountability to the public through its elected representatives.
 
The shuttering of the auditing office, like the mishandling of DOJ media guidelines, highlights an urgent need for reform – not just more promises of internal reform, but structural changes that restore public trust and protect individual rights.

​We reported in February that Texas Attorney General Ken Paxton is suing General Motors over its long-running, for-profit consumer data collection scheme it hatched together with insurance companies. Now Wired’s Dell Cameron reveals that automakers may be doing even more with your data, perhaps sharing it with law enforcement (often with and without a proper warrant).
 
So you may be getting way more than you bargained for when you subscribe to your new vehicle’s optional services. In effect, your vehicle is spying on you by reporting your location to cell towers. The more subscription services you sign up for, the more data they collect. And in some cases, reports Wired, cars are still connecting with cell towers even after buyers decline subscriptions.
 
All of that data can easily be passed to law enforcement. There are no set standards as to who gives what to whom and when. When authorities ask companies to share pinged driver data, the answers range from “Sure! Would you like fries with that?” to “Come back with a subpoena,” to “Get a warrant.” For its part, GM now requires a court order before police can access customers’ location data. But the buck can also be passed to the cell service providers, where the protocols are equally opaque. When Wired’s Cameron asked the various parties involved what their policies were, he was frequently met with the sound of crickets.
 
Author John Mac Ghlionn sums up the state of automotive privacy: “Your car, once a symbol of independence, could soon be ratting you out to the authorities and even your insurance company.”
 
It’s probably time to update “could soon be” to “is.”
 
This technology gives police the ability to cast a wide dragnet to scoop up massive amounts of personal data, with little interference from pesky constitutional checks like the Fourth Amendment. Law enforcement agencies of all stripes claim their own compelling rights to collect and search through such data dumps to find the one or two criminals they’re looking for, needle-like, in that haystack of innocent peoples’ information. Since your driving data can be sold to data brokers, it is also likely being purchased by the FBI, IRS, and a host of other federal agencies that buy and warrantlessly inspect consumer data.
 
Just over a year ago, Sens. Ed Markey (D-MA) and Ron Wyden (D-OR) fired off a letter to the chair of the FTC to demand more clarity about this dragnet approach. Caught with their hand in the cookie jar thanks to the resulting inquiry, GM agreed to a five-year hiatus on selling driver data to consumer reporting agencies. Where that leaves us with the police, as the Wired article reports, often remains an open question.
 
In the meantime, consider adjusting your car’s privacy settings and opt outs. The more drivers who take these actions, the more clearly automakers, service providers, and law enforcement agencies will start to get the message.

​We’ve covered automated license plate reader (ALPR) software nearly 20 times in the last few years. That we are doing so again is a reminder that this invasive technology continues to proliferate.
 
In the latest twist, an affluent LA community bought its own license-plate readers, gifted them to the Police Foundation; and, with approval from the City Council and the Police Commission, handed them to the LAPD. There was a proviso – that they only be used in said well-off LA community.
 
Turns out the LAPD didn’t appreciate being told where to use ALPR tech and which brand to use. The head of the department’s Information Technology Bureau told the media that law enforcement agencies should be able to use plate reader technology as they see fit and should own and control the data collected. This seems more about turf than principle, given that the LAPD already has thousands of plate-reading cameras in use.
 
This case brings a new question to an already intense debate. Should the well-connected be able to contract with local police to indiscriminately spy on masses of drivers, looking for those “who aren’t from around here”?
 
It is concerning enough the LAPD has already built up one of the nation’s largest ALPR networks. This is an example of how for-profit startups like Flock Safety are trying to corner the market for this technology nationwide and doing so through opaque agreements with law enforcement agencies that are impermeable to public scrutiny and oversight.
 
As with most surveillance tech, there are cases that justify their use. But these legitimate instances tend to be relatively few in number and should be executed with transparency in mind and oversight engaged. That’s a far cry from the “dragnet surveillance” approach currently in place, where the movements of millions of citizens who have done nothing wrong are tracked and stored in public and private databases for years at a time, all without a warrant or individual consent.

The Biden administration’s State Department kept dossiers on Americans accused of acting as “vectors of disinformation.”

This was a side activity of the now-defunct State Department Global Engagement Center (GEC). It secretly funded a London-based NGO that pressured advertisers to adhere to a blacklist of conservative publications, including The American Spectator, Newsmax, the Federalist, the American Conservative, One America News, the Blaze, Daily Wire, RealClearPolitics, Reason, and The New York Post.

Now we know that the blacklisting went beyond publications to include prominent individuals. At least one of them, Secretary Rubio said, was a Trump official in the Cabinet room when the secretary made this announcement.
​
“The Department of State of the United States had set up an office to monitor the social media posts and commentary of American citizens, to identify them as ‘vectors of disinformation,’” Rubio said on Wednesday. “When we know that the best way to combat disinformation is freedom of speech and transparency.”

It looks like the CLOUD Act might soon evaporate.

A bilateral agreement under that Clarifying Lawful Overseas Use of Data Act went into effect in 2022 to facilitate the sharing of data for law enforcement purposes. In February, the news leaked that the UK’s Home Office had secretly ordered Apple to provide a backdoor to the content of all of its users, Americans included. The order would effectively break the Apple iPhone’s Advanced Data Protection service that uses end-to-end encryption to ensure that only the account user can access stored data.

In response, Rep. Jim Jordan, Chairman of the House Judiciary Committee, and Rep. Andy Biggs, Chairman of the Subcommittee on Crime and Federal Government Surveillance, have fired off a letter to Attorney General Pam Bondi asking her to terminate the agreement with the UK under the CLOUD Act.

They understand the UK order would be a privacy catastrophe for Apple users around the world. Encryption protects dissidents, women and children hiding from abusive relationships, not to mention the proprietary secrets of innumerable businesses and people who simply value their privacy.

Under the terms of the agreement, the two parties can renew the CLOUD Act every five years. Just after the 2024 election, however, then-Attorney General Merrick Garland preemptively renewed the agreement to try to discourage the incoming Trump Administration from canceling or changing the agreement.

These two leading House Republicans told Bondi that the UK order “exposes all Apple users, including American citizens, to unnecessary surveillance and could enable foreign adversaries and nefarious actors to infiltrate such a backdoor.”

Or, as Jordan and Biggs noted, President Trump told UK Prime Minister Keir Starmer that the order was like “something that you hear about with China.”

Perhaps fearing a consumer backlash in the United Kingdom, the British government made a bid to keep Apple’s appeal of the order in a secret court session, claiming that even discussing the “bare bones” of the case would harm national security. The Investigatory Powers Tribunal rejected the government’s stance, guaranteeing at least some openness in the court’s deliberations.

But we cannot count on the British government to get it right for Americans. For that reason, Chairmen Jordan and Biggs began heaving rhetorical chests of tea into the harbor. They wrote:

“Accordingly, because the UK’s order could expose U.S. citizens to surveillance and enable foreign adversaries and nefarious actors to gain access to encrypted data, we respectfully urge you to terminate the Agreement and renegotiate it to adequately protect American citizens from foreign government surveillance.”

​Perhaps you had other things to do during last week’s House Judiciary hearing, “A Continued Pattern of Government Surveillance of U.S. Citizens.” So here’s a summary: The Judiciary’s Subcommittee on Crime and Federal Government Surveillance brought together witnesses from across the political spectrum (including PPSA’s own Gene Schaerr) to identify potential solutions to the ongoing (and growing) problem of Fourth Amendment abuse by government entities.
 
At the heart of the discussion was the need to import probable cause warrants – the key requirement of the Constitution’s Fourth Amendment – to the practice of federal agencies freely accessing our international communications, as well as our personal, digital data.
 
Witnesses effectively rebutted the fearmongering campaign by the intelligence community to convince us that a warrant requirement for federal surveillance of American citizens is too onerous, and too dangerous to entertain. But the most effective remarks came from a Member of the committee.
 
Rep. Brad Knott (R-NC), a former U.S. Attorney for the Eastern District of North Carolina, addressed the issue of warrant requirements with the assurance of a former federal prosecutor. He spoke of what it took for him to get permission to “flip the switch” on some of the most “intrusive” forms of wiretapping American citizens.
 
“So you have to demonstrate necessity,” Rep. Knott said. “You have to demonstrate why other techniques are futile … the rigor we had to exercise was very important … it kept the internal investigators accountable.”
 
Rep. Knott said the warrant process made sure investigations were “open and honest.” Investigators knew “that their actions were going to be subject to pen and paper. They were going to be subject to judicial review … and opposing counsel.”
 
Given the clarity and accountability added by warrants, Rep. Knott added:
 
“It’s amazing to me that there’s so much resistance to the warrant requirement alone.”
 
Throughout the 90-minute hearing, Members and witnesses stressed one thing:
 
The countdown clock is ticking on what may be our last, best chance at meaningful reform – including the adoption of a warrant requirement for U.S. citizens when Section 702 of the Foreign Intelligence Surveillance Act (FISA) comes up for renewal next year (it’s due to sunset in April 2026).
 
Section 702 is the legal authority that allows federal intelligence agencies to spy on foreign targets on foreign soil. But it also “incidentally” picks up the international communications of Americans, which can then be warrantlessly inspected by the FBI and other agencies.
 
Section 702 got a lot of airtime at the hearing and was frequently linked with the words “loophole” and “backdoor.” The Reforming Intelligence and Securing America Act (RISAA) of 2024 attempted to fix Section 702 – and did add some useful reforms – but it also left a loophole in which the FBI and others attempt to justify warrantless backdoor searches on Americans’ private communications.
 
For the FBI in particular, this has become the go-to means to warrantlessly develop domestic leads.
 
“Three million times they did [backdoor searches] in 2021,” lamented Judiciary Chairman Jim Jordan (R-OH). Or, as James Czerniawski of Americans for Progress, put it: “Time and time again we have caught the intelligence community with their hand in the constitutional cookie jar.”
 
Members and witnesses alike also addressed a privacy crisis even greater than Section 702 – the routine purchases made by federal agencies of Americans’ private digital information from data brokers.
 
ACLU’s Kia Hamadanchy reminded the subcommittee that the kind of data that can be bought and sold would be, in the words of a former CIA deputy director, “top secret” sensitive if gathered by traditional intelligence means. It would have to be kept “in a safe,” not in a database.
 
The hearing also got at what many consider the underlying issue driving the new era of surveillance. Namely, the acknowledgment that we increasingly live not in one world, but two – our physical reality and its digital twin. But unlike our world, the laws governing how the Fourth Amendment should be applied in the digital context are largely unwritten. In other words, said Rep. Andy Biggs (R-AZ), it’s the “Wild West.”
 
And Ranking Member Rep. Jamie Raskin (D-MD) added, “New technologies make it a lot harder to reign in government intrusion in the lives of the people.” The unwitting result? “We live in a modern, albeit consensual, surveillance state,” declared Phil Kiko, principal at Williams & Jensen and former Judiciary counsel.
 
With any luck, things might be different a year from now when FISA is up for renewal, thanks to a U.S. District Court ruling in January.
 
“To countenance this practice,” of warrantless surveillance, wrote the court, “would convert Section 702 into … a tool for law enforcement to run ‘backdoor searches’ that circumvent the Fourth Amendment.”
 
That legal precedent didn’t exist when the last Congress debated FISA reforms. Emboldened by this landmark decision, Reps. Jordan and Raskin are pledging to once again work together in a bipartisan spirit to win this fight. Their continuing partnership captures the spirit of the subcommittee’s hearing and should give reformers a renewed sense of hope.

​With the summer travel season imminent, the already hot (and recently explored) topic of warrantless searches at U.S. borders and ports of entry keeps getting hotter by the day. The latest twist comes from ZDNET, where David Berlind asks the age-old question: Biometric vs. Passcode?
 
What, you were expecting “Plastic vs. Paper?”
 
Seriously, it’s come to this: How do American citizens best thwart their own government from its attempts to violate our constitutional rights? Specifically, how do citizens prepare against warrantless searches of their personal devices at border crossings, as Customs and Border Patrol agents seem increasingly determined to carry out?
 
The CliffsNotes version of ZDNET’s advice: The spoken word still matters (for now) relative to the Constitution, as in, “No person … shall be compelled in any criminal case to be a witness against himself.” Speech existed when the Constitution was written; biometric tech (fingerprint scanning, facial recognition, etc.) did not.
 
Put another way, being pressured to verbally recite your passcode could be construed as self-incrimination. So it is easier to refuse a request to speak it than to stand still and have your face open your device. But this much is sure: biometrics aren’t spoken, so that line to the Fifth Amendment is dotted at best. The same goes for Miranda. “The right to remain silent” is predicated on you actually remaining silent.
 
As for the Fourth Amendment itself, the Supreme Court has yet to meaningfully clarify its 1985 declaration that the Fourth’s “balance of reasonableness is qualitatively different at the international border than in the interior.” In practice, this means warrantless searches of your devices coming through customs is allowed. Among the many unanswered questions, what constitutes a “routine” search?
 
Is the biometric vs. passcode distinction a completely absurd technicality straight out of Monty Python? You bet your sweet privacy it is. But it’s also a gray area of unsettled law, so technicalities are currently one of our last defenses against this particular strain of government intrusion.

​Congratulations to Director of National Intelligence Tulsi Gabbard for launching a serious effort at intelligence community (IC) reform.
 
On Tuesday, Director Gabbard announced a “Task Force to Restore Trust in the Intelligence Community and End Weaponization of Government Against Americans.” Rather than saddle Washington with an unwieldy new acronym, TFRTICEWGAA, this task force will be known as the Director’s Initiatives Group (DIG).
 
“I established the Director’s Initiative Group to bring about transparency and accountability across the IC,” Director Gabbard said in a statement.
 
She lists many DIG priorities that are familiar hobby horses of this administration, though they are admittedly responses to deep and serious abuses – from official and secret government censorship during the Biden administration, to weaponization of government for political purposes.
 
What we find most intriguing about DIG is its charge to engage in mass declassification. We’ve long called out the absurd lengths the federal government goes to stamp “classified” on even the most innocuous documents, often in conflict with executive orders to declassify.
 
In this new effort we see enormous potential for DIG to inform Congress and the American people of key facts regarding oversight of intelligence community programs. A few are:
 

• How many Americans (or “U.S. Persons”) by year have had their communications warrantlessly collected and reviewed by federal agencies under FISA Section 702, a law meant to allow surveillance of foreign targets on foreign soil?
• How many times has evidence gleaned from Section 702 been used by prosecutors against American criminal defendants? Was the origin of such evidence revealed to those defendants’ counsels?
• How much money does each federal intelligence and law enforcement agency spend on purchasing the private and sensitive data of Americans from third-party data brokers?
• Who are the data brokers who sell this information to the government?
• How does each agency use this information obtained without warrants?

 
For years, PPSA has used FOIA and legal action to try to force the government into revealing how often it has “unmasked” – or internally revealed the identity – Members of Congress whose communications get picked up in surveillance. We also want to know if the agencies are using these surveillance authorities, whether Section 702 or purchased data, to surveil Members of Congress on the House and Senate Judiciary and Intelligence Committees, those with specific oversight of the intelligence community.
 
Director Gabbard has undertaken a strong and necessary corrective within the intelligence community – and one from the top, no less. Despite her position, she will no doubt encounter resistance and obfuscation along the way. But if she presses forward, Director Gabbard can reinforce the power of Congress to create guardrails and constitutional protections on programs that operate in near darkness.

​If this were a political thriller, “Quiet Skies” might be Russia’s clandestine government surveillance program being used to eliminate enemies of the state by poisoning their tea with polonium every time they take a flight.

In reality, “Quiet Skies” is the Transportation Security Administration’s secret spying program for the Air Marshal Service. First outed by the Boston Globe in 2018, Quiet Skies singles out potentially dangerous flyers for close attention and inspection (“enhanced observation”).

Enhanced observation is a 45-minute process that squeezes every inch of clothing, inspects the lining of suitcases, and requires a live review of every electronic device (meaning take it out, turn it on, and hand it over). Two bomb-sniffing canine teams and a plainclothes TSA supervisor may also be involved and, in the sky, up to three Air Marshals are tasked with watching these suspected passengers’ every move.

“SSSS” is TSA’s boarding pass designation for this treatment, which suggests that no focus groups or historians were consulted beforehand.

Such inspections in many cases are undoubtedly necessary to track bad actors intent on doing harm to the United States. As people who fly often with our family members, we are glad the government is on the lookout for the next potential shoe-bomber. Whistleblowers have indicated that the program, however, is also being abused as a means of targeting political opponents rather than as a $400-million-dollar anti-terrorist safety net.

Just ask Tulsi Gabbard, who was targeted in 2024 after returning from Rome with her husband. By then, of course, the Iraq War veteran and former Democratic representative had become the Biden Administration’s persona non grata du jour after she endorsed and campaigned for Donald Trump.

With Gabbard now the Director of National Intelligence, we hope that Rep. Tim Burchett’s (R-TN) request for answers as to why Gabbard was targeted will now see the light of day. Was she simply unlucky in being randomly chosen for this treatment, which has happened to one of us?
​
If politics is involved in any way, that would be a very serious misuse of security policy. You don’t have to be a fan of Director Gabbard to see how such an authority could be misused by any administration in any direction. Employing such tools to surveil political opponents is how republics fall.

As facial recognition and biometric scanning systems expand to 400 U.S. airports, Sen. Jeff Merkley (D-OR) is asking if this could be the beginning of a U.S. surveillance state.
 
In a video interview with Philip Wegman of RealClearPolitics, Sen. Merkley said:
 
“I'm concerned about the way facial recognition is used to encroach upon freedom and privacy around the world. We see China enslaving a million Uyghurs, and a tool they use is facial recognition software. It's so inexpensive and pervasive; if you put that power in the hands of a government, you can't know where it's going to go.

“This is not the kind of tool you want to give to the government in a free country. You would never know you have the ability to opt out at any airport where they're doing this program."

The Corporate Transparency Act’s plan to surveil 32 million American small businesses has been stopped cold.
 
On March 26, the Treasury Department published an interim final rule that removes the onerous beneficial ownership reporting requirement. From now on, only foreign entities are required to report or update the personal information of anyone who owns 25 percent or more of a given business.

There are good ways to track the money networks of terrorists, drug dealers, and other criminals. But asking hard-working American small business owners to spend hours and money to report information that doesn’t reveal any of that information was an idea whose time will deservedly never come.

We still look forward to the day when the “Repealing Big Brother Overreach Act” can be signed into law and the Corporate Transparency Act will be dismantled in toto.
​
No one expects “foreign reporting companies” to be transparent about which criminals might happen to own their businesses anyway. In the meantime, Treasury’s Financial Crimes Enforcement Network needs to find more realistic ways to safeguard the financial system from illicit activity – or at least be honest about its intent to extend surveillance over Americans’ financial transactions under the guise of flawed legislation like the CTA.

​The drafters of the U.S. Constitution could not have imagined Google, Apple, and cell-site technologies that can vacuum up the recorded movements of thousands of people. Still smarting from the British colonial practice of ransacking rows of homes and warehouses with “general warrants,” the founders wrote the Fourth Amendment to require that warrants must “particularly” describe “the place to be searched, and the persons or things to be seized.”
 
Courts are still grappling with this issue of “particularity” in geofence warrants – technology that analyzes mass data to winnow out suspects. Now a federal court in Mississippi has come down decisively against non-particular searches in location-and-time based cell tower data.
 
To reach this conclusion, Judge Andrew S. Harris had to grapple with a Grand Canyon of circuit splits on this question. His opinion is a concise and clear dissection of divergent precedents from two higher circuit courts.
 
Harris begins with the Fourth Circuit Court of Appeals in Virginia in United States v. Chatrie (2024), which held that because people know that tech companies collect and store location information, that a defendant has no reasonable expectation of privacy.” The Fourth Circuit reached its decision, in part, because Google users must “opt in to Location History” to enable Google to track their locations.
 
The Fifth Circuit Court of Appeals in New Orleans took the Fourth Circuit’s reasoning and chopped it up for jambalaya. The Fifth drew heavily on the U.S. Supreme Court’s 2018 United States v. Carpenter opinion – which held that the government’s request for seven days’ worth of location tracking from a man’s wireless carrier constituted an unconstitutional search.
 
This data, the Supreme Court reasoned, deserves protection because it provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.”’ Despite a long string of cases holding that people have no legitimate expectation of privacy when they voluntarily turn over personal information to third parties, the U.S. Supreme Court held that a warrant was needed in this case.
 
The Fifth followed up on Carpenter’s logic with a fine distinction in United States v. Smith (2024): “As anyone with a smartphone can attest, electronic opt-in processes are hardly informed and, in many instances, may not even be voluntary.” That court concluded that the government’s acquisition of Google data must conform to the Fourth Amendment.
 
The Fifth thus declared that geofence warrants are modern-day versions of general warrants and are therefore inherently unconstitutional. That finding surely rattled windows in every FBI, DEA, and local law enforcement agency in the United States.
 
Judge Harris worked from these precedents when he was asked to review four search-warrant applications for location information from a data dump from a cell tower. The purpose of the request was not trivial. An FBI Special Agent wanted to see if he could track members of a violent street gang implicated in a number of violent crimes, including homicide. The government wanted the court to order four cell-service provides to produce data for 14 hours for every targeted device.   
 
Judge Harris wrote that the government “is essentially asking the Court to allow it access to an entire haystack because it may contain a needle. But the Government lacks probable cause both as to the needle’s identifying characteristics and as to the many other flakes of hay in the stack … the haystack here could involve the location data of thousands of cell phone users in various urban and suburban areas.”
 
So Judge Harris denied the warrant applications.
 
Another court in another circuit may have well come to the opposite conclusion. Such a deep split on a core constitutional issue is going to continue to deliver contradictory rulings until it is resolved by the U.S. Supreme Court. In the meantime, Judge Harris – a graduate of the University of Mississippi Law School – brings to mind the words of another Mississippian, William Faulkner: “We must be free not because we claim freedom, but because we practice it.”

​If you are walking the streets of Laredo, Texas, and you withdraw $200 from your account at an ATM, under a new rule your personal identifying information will soon be dispatched to the Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury Department.
 
The same would happen if you withdrew $200 in 30 zip codes in El Paso, or in Cameron, Hildalgo, Maverick, or Webb counties in Texas, or San Diego and Imperial counties in California.
 
In all, this new regulation announced by the U.S. Treasury Department will require banks to report Americans for the supremely suspicious act of withdrawing $200. These consumers will then become the targets of Currency Transaction Reports along the U.S.-Mexican border.
 
The impetus, says the agency, is “deep concern with the significant risk to the U.S. financial system of the cartels, drug traffickers, and other criminal actors along the Southwest border.” But $200 sounds like a measly threshold for coyotes who charge illegal immigrants thousands to cross the border, and drug cartels that often make deals with barrels of cash. A $200 withdrawal certainly doesn’t sound like a risk to the U.S. financial system – or a likely indication of criminal activity.
 
But it is no surprise that the bureaucracy is taking advantage of President Trump’s reasonable designation of international drug cartels as terrorist organizations. FinCEN has long been at the center of efforts to make financial surveillance of Americans comprehensive.
 
This is the same agency that worked with the FBI to encourage financial institutions across the country to scour their data and file Suspicious Activity Reports without any clear criminal nexus. Suspicious activities that could have made an American a surveillance target under that now-discontinued program included merely shopping at certain stores, like Dick’s Sporting Good or a Bass Pro Shop. Perhaps the feds also included as a basis for surveillance laughing at Jeff Foxworthy jokes – on the theory that if you are buying Dick’s camo shorts, you just might be a redneck.
 
But this is not a joke. More than one million Americans will soon be unable to withdraw a very modest sum of money without being subjected to the same reporting requirements and surveillance risk under the Bank Secrecy Act as those who make $10,000 cash withdrawals in the rest of the country. The larger issue is why any American should be subjected to warrantless surveillance based on withdrawing a dime of his or her own hard-earned money. The basic concept is hard to square with the Fourth Amendment.
 
This is a dispiriting sign that the financial surveillance of the American people continues and even increases unabated. Nicholas Anthony of CATO, who broke this story, noted that Americans were upset when the previous administration lobbied Congress for the authority to surveil bank accounts with just $600 in activity. While that law never passed, Treasury’s new rule now subjects one million Americans living in a wide swath of the country to surveillance at just a third of that amount.
 
Perhaps the best withdrawal would be a revocation of this new rule.

​Here's a philosophical question for you: If no one searches for the information stored in a database, does that mean the information doesn't exist? It may be right there – where Column 32 meets Row 743 – but if no one has executed a search, has it been “found” or “seen” yet? Does it even exist? Now hang on to that curious idea for a moment and we’ll circle back.
 
Recall that we recently commended the nonprofit periodical Cardinal News for publishing an investigative series on the growing use of surveillance technology by local police in Southwestern and South Central Virginia.
 
As part of their investigation, Cardinal News drove through nearly 20 cities, towns, and counties, then used Virginia’s Freedom of Information Act (FOIA) to request the video surveillance data of their vehicle. And what was the result of these FOIA requests?
​

• Three entities complied in a timely manner.
• Two declined the requests.
• Several asked for more time (as the law allows).
• And two are taking them to court.

The city of Roanoke and the Botetourt County Sheriff want the City Circuit Court to rule whether they “really have to” provide the data Cardinal News requested. In their complaint, Roanoke and the Botetourt Sheriff make three less-than-compelling arguments:

1. Virginia’s FOIA statute says that new records do not have to be created in order to comply with a request. The plaintiffs claim that executing a search to find the requested information equates to creating a new record – and therefore they don’t have to do it. As we said at the beginning, what a curious idea. It seems to us that a search doth not a record make. Like the sound of the proverbial falling tree in the forest, the record in the spreadsheet already exists whether or not it’s looked at. One hopes, of course, the City Circuit Court will recognize this fallacy for what it is when it takes up the case this month.
   
   
2. The government plaintiffs define all license plate data as “investigative” – by default. Conveniently, they claim their contract with Flock Safety (who owns the cameras and stores the data) prohibits them from performing non-investigative searches. It may be that Roanoke and the county sheriff are anticipating a law that does not go in effect until next year. The recent Virginia statute that allows the use of these camera systems expressly exempts such data from being subject to FOIA requests: “System data and audit trail data shall not be subject to disclosure under the Virginia Freedom of Information Act.” But that’s next year, and this is now.
   
   
3. The government plaintiffs are also arguing that fulfilling FOIA requests (at least in Virginia) is a felony under state law – at least when a computer and any personally identifiable information is involved. This approach strikes us as a dubious read of the actual statute, which applies only when someone uses a computer to effect “material artifice, trickery or deception” (Virginia Code § 18.2-152.5:1). Giving the sheriff your license plate number and asking to see when and where you were being recorded is not going to send the responding official to prison.

A final note: As Cardinal News points out, Virginia law says computers can’t be used to gather identifying information – i.e., account numbers, credit card numbers, biometric data, fingerprints, passwords, or other truly private information. “That’s what the statute is protecting,” the newspaper argues. In other words, the law is not meant to protect you from your own license plate number.
 
Where does such chutzpah come from? This FOIA response perhaps shows that local government is learning from the mental gymnastics and rhetorical sleights-of-hand that federal agencies have mastered in fobbing off lawful requests.
 
We look forward to seeing how these too-clever-by-half arguments will fly in front of a Virginia judge. Stay tuned.

​We’ve long followed reliance on stingrays by federal, state, and local law enforcement. These are devices that simulate cell phone service towers to fool nearby devices into connecting and giving up everything – texts, calls, emails, and more, along with the location of the cellphone and information about the user/owner.
 
Law enforcement uses stingrays to target specific criminals, but the problem is – as is so often the case with surveillance technologies – the data of everyone in the vicinity gets swept up, including that of peaceful protesters. These sweeps pose a direct threat to the most precious rights Americans have – the First Amendment rights to free speech and to petition the government for a redress of grievances. Protests are not some Sixties-style fad that never went away. The right to protest is as home-grown as the Boston Tea Party, the Million Mom March, and the March for Life.
 
Yet there are numerous reports of stingrays and similar technologies being used by authorities to clandestinely spy on large-scale public protests. Most disturbing is the insistence by the FBI to keep any use of a stingray in specific cases a state secret. Based on documents obtained through PPSA Freedom of Information Act requests, we know that the FBI has used nondisclosure agreements to force local jurisdictions to hide the fact whenever stingrays are used, even in open court.
 
Now, thankfully, the Electronic Frontier Foundation has gone beyond protesting and filing court briefs to work with technologists willing to roll up their sleeves and get out the soldering iron. EFF is presenting an open-source tool to help detect stingray use. The aptly named Rayhunter will set you back only about $30, which is the cost of the hardware, the Orbic RC400L hotspot you’ll need (check Amazon, eBay, or any of your geeky uncles). Once in hand, simply follow the instructions on EFF’s open-source Rayhunter website.
 
As the Rayhunter gets out into the market, protesters of all stripes will be able to know if their First Amendment-protected activities are being surveilled – and to livestream the results.
 
Other steps should be taken by FBI Director Kash Patel or by Congress. Director Patel or Congress should mandate full disclosure about the origin of all evidence collected by a stingray and presented in court against a criminal defendant. Every American has the right to face his or her accuser and be confronted with the evidence against them, even when that evidence is digital and the result of proprietary technology.
 
For now, let us applaud the Electronic Frontier Foundation for giving Americans the all-too-rare chance to answer the question, “Am I being surveilled?” At the very least, Americans engaging in their First Amendment-protected right to protest can know if the government is turning their own phones against them.

​As we’ve reported, the Corporate Transparency Act (CTA) requires owners of America’s 33 million small businesses to report detailed personal data on anyone with at least a 25 percent stake in their company. This law represents that most dangerous of all mixtures – overreach and nonsense.
 
The stated purpose of this law is to catch crooks. So the ownership disclosure requirement in effect says:
 
“Dear Terrorist (or Cartel Member or Money Launderer), would you kindly tell us who owns at least 25 percent of your company? Having this information would make building a case against you so much easier.
So please check this box if you’re a criminal – Sincerely, the Feds.”
 
Such unassailable logic reminds us of the old standup routine that advises people to check their closets before bedtime for a possible axe murderer while he’s still hiding. Do that and you will be safe... somehow.
 
Fortunately, CTA’s days may be numbered. Rep. Warren Davidson (R-OH) has re-introduced what he calls the “Repealing Big Brother Overreach Act.” (A better name might be “Repealing the ‘Do You Think Criminals Are That Stupid Act’?”)
 
Not only does the Corporate Transparency Act fail to accomplish what it sets out to do (catch criminals), it also targets a completely irrelevant group in the process – the average American small business owner, forcing him or her to register with a massive federal database that can be accessed without a warrant. Your local barbershop, accountant’s service, and gym are the targets. Big businesses, financial entities, and more are exempt from CTA’s provisions, which only threatens small business owners with large fines and two years in prison if they don’t comply.
 
It doesn’t make sense that you can stop terrorists, drug dealers, and money launderers by going after honest small businesses. If this “beneficial ownership” provision ever went into effect, it is highly likely that the first fines and prosecutions would be against honest business owners who missed the filing deadline rather than a terrorist or money launderer.
 
PPSA believes that the government’s insatiable hunger to track ordinary Americans is the real intent behind this law. This is all in keeping with the recent extension of surveillance over Americans’ financial transactions. In the meantime, and thanks to a flurry of back-and-forth court rulings (see our filing before the 11th Circuit Court of Appeals) as well as new guidance from the Treasury Department, reporting beneficial ownership information is currently voluntary. As of today, no penalties will be associated with failing to report.
 
Treasury is also recommending a rule revision that limits the reporting requirements to foreign entities only. The stars seem to be aligning in favor of Rep. Davidson’s bill, with Alabama Republican Tommy Tuberville sponsoring it in the Senate. If this bill makes it to the Resolute Desk, President Trump is all but certain to sign it.
 
But now is the time to keep the pressure on. Let your representatives in the House and Senate know that you support the “Repealing Big Brother Overreach Act.”

​Americans value privacy in the marketplace when we vote with our dollars no less than when we go behind the curtains of a polling booth.
 
Now imagine if every dollar in our possession came with an RFID chip, like those used for highway toll tags or employee identification, telling the government who had that dollar in their hands, how that consumer spent it, and who acquired it next.
 
That would be the practical consequence of a policy proposal being promoted now in Washington, D.C., to enact a Central Bank Digital Currency (CBDC). Some have recently asked Congress to attach such a currency to the Bank Secrecy Act, to enable surveillance of every transaction in America.
 
Such a measure would end all financial privacy, whether a donation to a cause, or money to a friend. “If not designed to be open, permissionless, and private – resembling cash – a government-issued CBDC is nothing more than an Orwellian surveillance tool that would be used to erode the American way of life,” said Rep. Tom Emmer (R-MN).
 
This would happen because CBDC is a digital currency, issued on a digital ledger under government control. It would give the government the ability to surveil Americans transactions and, in the words of Rep. Emmer, “choke out politically unpopular activity.”
 
The good news is that President Trump is alert to the dangers posed by a CBDC. One of his first acts in his second term was to issue an executive order forbidding federal agencies from exploring a CBDC.
 
But the hunger for close surveillance of Americans’ daily business by the bureaucracy in Washington, D.C., is near constant. There is no telling what future administrations might do. Rep. Emmer reintroduced his Anti-Surveillance State Act to prevent the Fed from issuing a CBDC, either directly or indirectly through an intermediary. Rep. Emmer’s bill also would prevent the Federal Reserve Board from using any form of CBDC as a tool to implement monetary policy. The bill ensures that the Treasury Department cannot direct the Federal Reserve Bank to design, build, develop, or issue a CBDC.
 
Prospects for this bill are good. Rep. Emmer’s bill passed the House in the previous Congress. It doesn’t hurt that Rep. Emmer is the House Majority Whip and that this bill neatly fits President Trump’s agenda.
 
So there is plenty of reason to be hopeful Americans will be permanently protected from a surveillance currency. But well-crafted legislation alone won’t prevent the federal bureaucracy from expanding financial surveillance, as it has done on many fronts. PPSA urges civil liberties groups and Hill champions of surveillance reform, of all political stripes and both parties, to unite behind this bill.

​Credit Rep. Anna Paulina Luna (R-FL) for leading a task force of the House Oversight Committee to declassify federal secrets, including files concerning the assassinations of John F. Kennedy, Robert F. Kennedy, and the Rev. Martin Luther King Jr. The scope of Rep. Luna’s inquiry, approved by committee Chair James Comer (R-KY), will also examine the reach of Jeffrey Epstein’s vile activities, as well as government records on unidentified aerial phenomenon.
 
We urge Chairman Comer, Rep. Luna, and the other members of her task force to consider including in their declassification task force another matter of deep interest to the American people – key facts that reveal the extent of the American surveillance state and, especially, the extent to which it surveils Americans.
 
Digital Data Purchases
 
One area ripe for investigation is the common government practice of purchasing the personal digital data of Americans, scraped from apps and sold by data brokers. The FBI, IRS, Department of Defense, and Department of Homeland Security routinely buy our most sensitive and personal information and examine it without a warrant.
 
We urge Rep. Luna to work to unearth:

• The identity of the data brokers, foreign and domestic, who sell Americans’ information to the government.

 

• Estimates of the number of individual Americans whose personal information is purchased.

 

• The categories of purchases made that give the government access to our familial, romantic, professional, religious, and political associations.

What Is the Proposed “Fix” in the “Make Everyone a Spy” Law About?
 
Another area that cries out for transparency was the subject of a measure passed by Congress last April, which is widely called the “Make Everyone a Spy.” This law broadens the definition of an “electronic communications service provider” to practically any business or house of worship that offers free Wi-Fi. Falling under this definition obligates a business to secretly spy on its customers for the National Security Agency.
 
At the time of passage, Congress promised to narrow the scope of this law to types of companies defined in rulings by the Foreign Intelligence Surveillance Act (FISA) Court that were previously excluded from this law. This fix was nixed in the House, leaving the most expansive version of the law imaginable, hence the popular moniker – Make Everyone a Spy.
 
These companies are widely believed – and even hinted at in open debate on the Senate floor – to be providers of cloud storage.
 
We urge Rep. Luna and her colleagues to work to make public the nature of the proposed legislative fix. Such a disclosure would inform future debate in Congress over the scope of this ECSP provision, which has enormous implications for Americans’ privacy.
 
Topline Numbers on FISA Section 702
 
Yet another area that needs greater transparency is the impact of government surveillance under FISA Section 702. This law was enacted by Congress to enable surveillance of foreigners on foreign soil. But in recent years it has been used to search for the communications of millions of Americans “incidentally” caught up in this foreign surveillance program.
​

• We urge Rep. Luna to dig out the number of Americans who have had their communications searched under FISA Section 702 by the FBI.

This information is essential for an informed debate when Congress next considers the reauthorization of Section 702 in early 2026.
 
Spying on Members of Congress
 
There are also clear signs the intelligence agencies have spied on Members of Congress by “unmasking” their identities in foreign communications, and possibly examining their communications by tapping into the “upstream” backbone of the internet.
 
We urge Rep. Luna to:
​

• Work to release records on the “unmasking,” “upstreaming,” or purchasing of personal data by the NSA, CIA, or FBI of 48 current and recent members of committees with oversight responsibilities over the intelligence community, ranging from Marco Rubio to Devin Nunes, and Elise Stefanik.

Years of Freedom of Information Act requests and subsequent lawsuits by our organization and our civil liberties peers have rarely been met with substantive answers. There is no reason why the Congress and the American people do not already know the answers to these questions, none of which would compromise national secrets or intelligence “sources and methods.”
 
Chairman Comer, Rep. Luna, and the other members of the task force have a priceless opportunity to use their deep dive into the government’s sea of secrets to inform Congress and the American people of the nature and extent of federal surveillance of Americans.

​It is always refreshing to thumb through a court opinion that reads like an Elmore Leonard novel. For example, in a recent opinion of the Eleventh Circuit Court of Appeals, one defendant is also known as “a.k.a. Baldhead, a.k.a. Ball Head.” And the opinion contains numerous references to whether “a cup of ice” is code for an ounce of meth, and to extensive evidence presented in court – guns, money, dope, a gold necklace seized from a home – that could provide props from Netflix’s Narcos.
 
Our guess is that the several defendants in this case, whose convictions were mostly upheld by the court, did not earn enough merit badges to become Eagle Scouts. But they are still Americans with constitutional rights. And, for the good of us all, they should get the same protections of the Fourth Amendment as the rest of us.
 
Did they?
 
Here are the facts: The home of one Rolando Williamson in Birmingham, Alabama, was persistently surveilled by pole cameras from October 2018 through August 2019. The cameras warrantlessly recorded the comings and goings of Williamson and his visitors nonstop, including his front and back yards – the area often referred to in Fourth Amendment law as the home’s “curtilage.” 
 
On the basis of this persistent recording of a home, the government performed a sting operation and followed up with warrants to search Williamson’s home. We agreed with three out of six judges on the First Circuit Court in a similar case, Moore v. United States, that a “reasonable expectation of privacy” was violated when the government placed a pole camera in front of a woman’s home for eight months.
 
In this case, the Eleventh Circuit ruled that similarly persistent surveillance did not violate the Fourth Amendment. The court reasoned that, because one of the cameras overlooked the public street in front of Williamson’s home, and the other recorded the exposed and publicly viewable backyard, the cameras “could view only what was visible from the public streets in front of the house and the public alley behind it.”
 
The court rejected the defense’s comparisons to the U.S. Supreme Court’s Carpenter v. United States (2018), which found a Fourth Amendment violation in law enforcement’s seizure of a suspect’s location history from a cellphone tower. The court also asserted that this case did not resemble United States v. Jones (2012), in which the Supreme Court held that attaching a GPS device to a vehicle amounted to a search requiring a warrant.
 
“By contrast, a pole camera does not track movement,” the Eleventh Circuit found. “It does not track location. It is stationary – and therefore does not ‘follow’ a person like a GPS attached to his vehicle.” Moreover, “the Carpenter decision concerned a technology that is meaningfully different than pole cameras. Pole cameras are distinct both in terms of the information they mine and the degree of intrusion necessary to do so.”

We question the court’s conclusion about the narrowness of data mined by a pole camera. A persistent camera does track movement of residents and their visitors in and out of a home. It potentially reveals a target’s political, religious, and romantic interests. Watching the movements for months around the curtilage of a home – which is highly protected in Fourth Amendment law – is in fact very intrusive.
 
These are ripe questions for future cases. As for the Eleventh Circuit, it declared that it is not making a general rule on the constitutionality of pole cameras. State and federal courts remain divided on that question. And it is a question that will not go away. From pole cameras to drones, aerial panoramas from balloons that can loiter for months, and other persistent forms of surveillance, the courts – and likely, the Supreme Court – will need to set a rule on these forms of outside-in surveillance.
 
To see that they do, PPSA will be looking to provide legal support in cases that present the best fact patterns. 

For almost 70 years, the President’s Intelligence Advisory Board (PIAB) has advised U.S. Commanders-in-Chief on the effectiveness of the country’s intelligence operations. President Donald Trump recently announced his PIAB roster, chaired by his longtime ally, former Congressman and House Intelligence Committee Chairman Devin Nunes.
 
In Nunes, Trump has chosen a super-utility player when it comes to evaluating the efficacy and integrity of the intelligence community. When Nunes was Chair, the Department of Justice surreptitiously collected data on multiple committee staffers – an unlikely coincidence given that Nunes was then investigating the FBI’s suspicious interest in Trump’s 2016 campaign, and clashing with the Justice Department and the FBI. Chairman Nunes was vocal and effective in exposing government surveillance abuses.
 
That experience alone makes Nunes a good choice to chair PIAB, as he understands firsthand the dangers of surveillance overreach in domestic contexts. Yet he’s also strong when it comes to spying on other countries, having vigorously supported the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA) in 2018.
 
Such balance is needed on this advisory board. When advising the president on intelligence matters, we urge the new PIAB to assess three well-documented misuses and abuses:

1. FISA Section 702: Invaluable for tracking foreign spies, it has long been used for unbridled surveillance of Americans on American soil. The ongoing abuse of Section 702 calls out for substantive reforms to shore up Fourth Amendment rights, including a warrant requirement for searches of Americans’ data.
   
   
2. The dangerous expansion of FISA’s Electronic Communication Service Provider standard – meaning the network/server user data of churches, law offices, gyms, department stores, campaign offices, car dealerships, you name it – can be spied on by the government without restriction. Some in the House blocked a promise made in the Senate’s passage to narrow this overreaching surveillance of Americans. Today, almost every free, business Wi-Fi network Americans use can be repurposed to spy on them. 
   ​
   
3. Commercially Available Information sold to federal agencies. At present, third-party data brokers may sell sensitive personal information (scraped from our apps, for example) to government intelligence and law enforcement agencies – from Americans’ financial and bankruptcy records, health and mental health issues, browsing and location histories. Virtually every aspect of our personal online identities can be acquired by the government, without cause or a warrant.

Other members of the newly-announced board include:

• Scott Glabe, Homeland Security alumnus
• Amaryllis Fox Kennedy, former CIA officer
• Wayne Berman of the Blackstone, Inc.
• Reince Priebus, former White House Chief of Staff
• Robert O’Brien, Former National Security Adviser
• Katie Miller, former Communications Director for Mike Pence

Given the experience of this team, we have high hopes they will bring balance to the board’s investigations and deliberations. Biden’s PIAB sidestepped calls for serious reforms of Section 702, despite being presented with evidence detailing more than 278,000 instances of rules violations by the FBI.
 
With President Trump’s stated goal that PIAB should “restore integrity” to the Intelligence Community, we urge the president’s PIAB appointees – who certainly have their work cut out for them – to do exactly that. They should begin by recommending specific measures to reign in the FBI’s rampant surveillance of Americans.