​Did you see The Wall Street Journal editorial Monday morning entitled “Playing National Security Roulette”? The editors argue that anything less than a clean reauthorization of the FISA Section 702 surveillance authority will “put the lives of Americans at risk.”
 
The Journal editors acknowledge that this authority, enacted by Congress to surveil foreign threats abroad, was misused by FBI agents who ran searches on political protesters, political donors, and Members of Congress. “But the intelligence community has since instituted safeguards on how searches must be authorized,” the editors tell us.
 
Thus, according to The Journal, adding any amendments to Section 702 would be a reckless gamble with national security – and reforms are not needed anyway, because the Reforming Intelligence and Securing America Act (RISAA) fixed all the problematic parts of Section 702.
 
Wrong on both counts.
 
Reforms Would Not Compromise National Security
 
Reformers want to amend the law to make the program consistent with the Fourth Amendment by requiring probable cause warrants before inspecting Americans’ communications.
 
But the warrant requirement being proposed for surveillance of Americans contains very clear exceptions for “exigent circumstances,” such as terrorist threats, as well as exceptions for every single other type of search the administration has claimed is helpful in protecting national security, including defenses against cyberattacks. Not only would these reform proposals allow the FBI to proceed without obtaining a warrant in an emergency, but the Bureau would also have great latitude as to what constitutes an emergency.
 
In short, warrants would be required in cases where the government is conducting a fishing expedition with no nexus to national security – such as an agent searching for the communications of his Tinder date, or searching for the communications of thousands of donors to a congressional campaign – but would not be required in exigent cases with national security implications. 
 
The FBI Continues to Violate the Law
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A FISA Court opinion in March 2025 revealed that the FBI had been systematically violating statutory requirements. In August 2024, DOJ overseers learned that the FBI was operating a “filtering” tool that allowed it to query Section 702 data under the radar. These U.S. person “searches” or queries were not counted, tracked, or audited, nor were they approved by an attorney or supervisor, as required by law.
 
Thus, the actual number of U.S. person queries for 2024 remains unknown and outside of any audits.
 
A new FISA Court opinion found that the systemic violations continue. According to The New York Times and The Washington Post, the FISA Court issued a classified opinion that reportedly reveals that even though DOJ shut down the filtering tool the FBI used in 2024, the FBI has been using another, similar filtering tool to conduct queries without following the requirements of RISAA.
 
Thus, the systemic violations of RISAA are not fixed. They are ongoing.
 
In Summary:
 
The warrant requirement proposals contain sufficient exceptions to counter potential terrorists, cybersecurity attacks, and other threats to the American people. And contrary to The Journal’s assertion that the RISAA “reforms appear to be working,” they are clearly not.
 
One final note – while the reauthorization of the Section 702 statute has an April 20 deadline, FISA Court surveillance orders are in effect through next spring. The House has plenty of time to debate these reform measures. There is no need for the kind of panic The Journal – obviously influenced by intelligence community spin – is fomenting.

​Yes, you – and us, and everyone else. We may all soon be tracked in the FBI’s proposed database for domestic terrorism. As Ken Klippenstein reports, buried inside the administration’s 2027 budget “is a new FBI-led center dedicated to ‘proactively’ hunting Americans the government classifies as so-called domestic terrorists.”

It’ll be a busy place, by the looks of it, operating as a joint mission center where 10 federal agencies watch out for any hint of the following beliefs:

·      anti-Americanism
·      anti-capitalism
·      anti-Christianity
·      support for the overthrow of the U.S. government
·      extremism on migration
·      extremism on race
·      extremism on gender
·      hostility towards those who hold traditional American views on family
·      hostility towards those who hold traditional American views on religion
·      hostility towards those who hold traditional views on morality

With the exception of overthrowing the government, this is a highly subjective list, capable of being interpreted (or added to) as any current or future administration of any stripe sees fit. It could include any atheist or agnostic, any supporter of Bernie Sanders, anyone who has leftward views on gender and the family. These standards, of course, could be inverted by the next administration to make suspects out of people who are critical of progressive policies, restrictive gun laws, or big government.

Today, we target atheists. Tomorrow, the FBI could once again target “radical traditional Catholics.”

The free speech implications alone are beyond chilling, but as a privacy matter, it’s draconian. It blurs the distinction between George Orwell’s “thoughtcrime” and actual terrorism. And to work, it must rely on artificial intelligence crunching vast amounts of social media data in ways that reduce the Fourth Amendment to an afterthought.

No less concerning, when this database is paired with the personal data these same federal agencies obtain by purchasing Americans’ digital records from third-party data brokers, you can see all the elements of a total surveillance state falling into place.
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It is hard to imagine that such broad categories can yield meaningful intelligence about real terrorists. But it may be just enough for the government to build a dossier on you.

​“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

That was the question Sen. Ron Wyden (D-OR) put to then-Director of National Intelligence James Clapper in an open hearing in 2013.

“No sir,” Director Clapper responded, then qualified his statement by saying, “not wittingly.”
It has since been proven – and is a matter of government record – that the NSA’s global trawl of data has pulled in the communications of Americans by the millions over the last five years. Quite a record for a surveillance authority enacted by Congress to surveil foreign targets on foreign soil.

See for yourself the misuse of this authority revealed in a rare public scolding of the FBI by the secret FISA Court over “widespread violations” of Americans’ privacy with Section 702 data. Or look at the revelations issued by that court of specific instances of how the FBI misused warrantless Section 702 material against U.S. political figures. It is widely reported that the FBI has freely helped itself to Section 702 data, searching the data of more than 19,000 congressional donors, a state judge, and Members of Congress.

The Hunter Biden Laptop Deceit

In 2016, former Director Clapper was joined by former CIA Director John Brennan, former NSA General Counsel Glenn Gerstell, and former NSA Deputy Director Richard Ledgett, along with almost 50 other former senior intelligence officials in signing a letter released just before the 2020 election. They chimed in on a New York Post story about the contents of a laptop owned by Joe Biden’s son, Hunter.

This time, the Fibbing Four solemnly told the American people that the contents of the Hunter Biden laptop had “all the classic earmarks of a Russian intelligence operation.” The FBI later determined that the emails and contents of the laptop were “not tampered with or manipulated.” Even The New York Times was forced to report that the laptop and its contents were genuine.

The irony is that former intelligence officials, abusing their continued access to classified information to skew a national election, is about the most Russian thing they could do.

Misinformation About Reform Legislation

Now Director Clapper, and his Hunter Biden colleagues Brennan, Gerstell, and Ledgett, have fired off another letter. This one is directed at Congress telling Members not to allow any reform amendments to the Foreign Intelligence Surveillance Act authority, Section 702, because that would degrade the government’s ability to protect Americans.

“If Congress fails to authorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time,” they write, joined by enough of their colleagues to get the number of signatories up to around 50. “As Members of Congress know, we face sophisticated threats from China, Russia, Iran, and North Korea, including the real possibility of devastating cyber-attacks and state-sponsored terrorism directed at Americans.”

These are, of course, real and active threats. But the Fibbing Four gloss over the fact that all of the reform proposals being proposed in Congress contain exceptions for “exigent circumstances.” These exceptions would allow intelligence agencies to react to time-sensitive emergencies, such as the so-called “ticking time bomb” scenario. These reform proposals also contain exceptions for cybersecurity and warrantless searches of metadata, requiring court approval only to examine the content of Americans’ communications.

Fool Me Once…

The good news is that Congress is getting wise to such shenanigans just before every vote. Before the last Section 702 reauthorization two years ago, the champions of the intelligence community put out a cryptic story about “a serious national security threat” that turned out to be theoretical, not imminent, reports about “Russian space nukes.”

Our advice to Congress is to look at the plain language of the reform legislation that allows the intelligence community to continue to defend America – while upholding our constitutional rights as well.
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We can defend America and obey the Constitution at the same time. Don’t let anyone tell you otherwise.

​The American Prospect reports that statements made by Rep. Jim Himes (D-CT), Ranking Member of the House Permanent Select Committee on Intelligence, are raising the question of how well Members of Congress understand the surveillance authorities they oversee.

​“I am not aware of any NSA purchases of U.S. person data,” Rep. Himes is quoted as saying in a virtual town hall last week. “And because their targets, by law, are exclusively foreign, they … have no reason and no business buying American data.”

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​We agree with the last part of that statement. If only the first part were true.
 
In a letter sent in 2023 in response to a query from Sen. Ron Wyden (D-OR), then-NSA Director Gen. Paul Nakasone wrote: “NSA acquires various types of CAI (commercially available information) for foreign intelligence, cybersecurity, and other authorized mission purposes, to include enhancing its signals intelligence (SIGINT) and cybersecurity missions. This may include information associated with electronic devices being
used outside and, in certain cases, inside the United States.”
 
Charlie Savage of The New York Times summarized the letter’s content thusly, “The National Security Agency buys certain logs related to Americans’ domestic internet activities from commercial data brokers.” This characterization was under the headline, “N.S.A. Buys Americans’ Internet Data Without Warrants, Letter Says.”
 
Rep. Himes also said that AI “has absolutely nothing to do with 702. Nothing. Full stop.”
 
The American Prospect reports that the Department of Justice’s National Security Division (NSD) budget justification shows that NSD “worked closely” with the intelligence community “to discuss new AI tools that are involved in processing or analyzing FISA-acquired information.”
 
All of which suggests that before the House debates the reauthorization of FISA Section 702 – a program that authorizes foreign surveillance on foreign soil but has often been used to warrantlessly spy on Americans on U.S soil – a deeper discussion with civil liberties groups and a robust House debate are warranted.
 
In facing the looming Section 702 debate, Members of the House need to hear from all sides of the surveillance debate – not just the approved line from the executive branch intelligence agencies.

Reading the private communications of Americans – without showing evidence of wrongdoing to obtain a warrant from a judge – violates the Constitution, disrespects American values, and opens the door to abuse.

Yet Congress is once again caught up in a debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), with some claiming that a warrant rule would endanger lives and national security.

The Center for Democracy and Technology and PPSA teamed up to brief Congress on the realities and actual numbers behind these claims about the examination of “U.S. person” queries – searches of people in America whose texts, emails, and calls get caught up in the National Security Agency’s global trawl of data.

Here are some of the myth-exploding facts from our brief.

MYTH #1: U.S. person queries are immensely important in a broad array of situations, making it dangerous to place restrictions on this important tool.

REALITY: Queries only provide value in a limited set of situations – and the proposed warrant rules provide exceptions to account for all of them.

Testimony from the intelligence community, the President’s Intelligence Advisory Board, and the Privacy and Civil Liberties Oversight Board uncovered only a few distinct scenarios in which U.S. person queries provided value. And the proposed warrant rule includes exceptions to the warrant requirement that account for them.

These exceptions include tracking the signatures of cyber threats, gaining consent from Americans targeted for foreign assassination and kidnapping plots, and tracking Americans’ contacts with suspicious foreign contacts. The government has yet to produce a single instance in which a warrant requirement would have impeded such efforts. Even then, the exceptions in reform proposals allow warrantless inspection of metadata – who contacted whom – leaving the government free to track Americans who are communicating with terrorists or foreign spies.

MYTH #2: U.S. person queries need to be done quickly and efficiently in the case of a “ticking time bomb,” and a warrant rule would slow the process down in a manner that endangers Americans’ lives.

REALITY: The government has never shown that queries provide such time-sensitive responses. But if they are needed, and the clock is ticking, once again the reform proposals include exceptions for such “exigent circumstances” scenarios.

In short, the exigent circumstances, cybersecurity, consent, and metadata exceptions to the proposed warrant requirement allow the government to respond to threats quickly.

MYTH #3: Warrants are not feasible given the scale of U.S. person queries – adding a warrant requirement would overwhelm intelligence agencies and the courts.

REALITY: By permitting warrantless metadata queries – such as communications logs – the warrant rule ensures that the government will not need to go to court frequently.

In 2023, the most recent year for which data is available, the FBI conducted queries for over 57,000 unique U.S. person terms, an unacceptable degree of government overreach and fishing expeditions.

Only 1.58 percent of the FBI’s U.S. person queries resulted in FBI agents accessing the content of communications. Thus, even if queries continued to be conducted at the prior rate of 57,000 annually – which is unlikely given that many of these queries were improper or overly broad – a warrant would be potentially applicable to less than 1,000 queries a year.

That’s less than three such queries per day on average, hardly an insuperable burden on the FBI and the courts.

Because the proposed warrant rule would permit warrantless metadata queries – only requiring court approval to access the content of messages – agencies would be able to confirm when a query will yield a “hit” before devoting any time and effort to seeking a warrant.

And most of those two to three queries per day would fall under the exceptions to the warrant requirement.

Our brief to Congress concludes:

“Americans’ basic rights should not be secondary to bureaucratic hurdles and staffing limits. The exceptions and exemptions built into the warrant proposal would allow the government to remain within the boundaries of the Constitution while also having the means to protect national security.”

​As the April 20 expiration of FISA Section 702 approaches, a familiar script is playing out on Capitol Hill. Members are warned that any delay in reauthorizing Section 702 – which enables U.S. intelligence agencies to surveil foreign threats – risks allowing a terrorist attack to unfold on American soil.

This “you will have blood on your hands” argument is not just wrong. It is a cynical ploy to short-circuit a debate that Congress owes the American people, one that would in no way endanger national security.

Here is the reality: Letting the statutory authority of Section 702 lapse does NOT mean America’s surveillance goes dark. Surveillance continues under Section 702 certifications issued by the Foreign Intelligence Surveillance Court, which remain valid until their expiration – currently extending to March 2027.

This is not speculation. It is how this law works. As The New York Times has reported, legal directives to communications providers “shall continue in effect” under existing court authorizations.

Yet lawmakers are again being told by the intelligence community to act immediately or risk catastrophe. This fear-based messaging has become routine, repeatedly stampeding Congress into reauthorizing Section 702 without strong reforms to protect Americans’ privacy.

Enacted by Congress to target foreign threats abroad, Section 702 has been used to conduct millions of warrantless searches of Americans’ communications – peaking at 3.4 million in 2021. These are the predictable results of allowing the government to conduct “backdoor searches” without a warrant.

In 2024, a bipartisan amendment to require warrants for searches of Americans’ communications failed in a 212–212 tie in the House. That vote showed how close meaningful reform is – if lawmakers are given the time to pursue it.

Supporters of a “clean” extension – one without any reform amendments – are once again promising a debate on reforms later. Such promised reform debates never arrive. Recent history gives no reason to believe that this time will be different.

Congress has time to debate well beyond April 20. It has time to patiently consider reforms, such as adding a warrant requirement before 702-derived communications of Americans can be inspected.
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The choice for Congress is not between national security and civil liberties. It is between rubber-stamping a flawed surveillance authority and doing the hard work of fixing it for their constituents.

Why does PPSA oppose a “clean” extension – without any changes or reforms – of the scandal-ridden Section 702 of the Foreign Intelligence Surveillance Act (FISA)? Recent history shows how much is at stake when the U.S. House votes in April on whether to reauthorize this surveillance authority, and why Congress must allow time for significant debate and reforms.

Section 702 was enacted by Congress to enable U.S. intelligence agencies to surveil foreign threats on foreign soil. The intelligence community maintains that the communications of Americans are swept up in the National Security Agency’s global trawl only “incidentally.”

Patrick Eddington, a former CIA officer now a Cato Institute policy analyst, writes that the rub is that “the practice is not incidental but a predictable, systematic, and – from the government’s perspective – valuable byproduct of the program.”

Here are some examples of what “incidental” looks like:

• The FBI in 2021 conducted more than 3 million warrantless searches of Americans’ communications under Section 702. This was an astonishing abuse of a surveillance power that Congress designed for foreign surveillance, not warrantless surveillance of Americans.

 

• The FBI, in violation of its own rules, illegally searched for the communications of 19,000 donors to a congressional campaign, of multiple U.S. government officials, of journalists, of political commentators, of a local political party, of people who came to the FBI to perform repairs, of victims who approached the FBI to report crimes, of business, religious, and community leaders who applied to participate in the FBI’s “Citizens Academy,” of college students participating in a “Collegiate Academy,” of police officer candidates, of colleagues and relatives of FBI agents, and of Black Lives Matter and January 6 protesters.

 

• Some of the most egregious improper queries occurred after the FBI implemented new rules to curb abuses. In April 2023, a FISC opinion revealed that the FBI in 2022 dipped into Section 702 data to warrantlessly spy on a U.S. Senator, a state senator, and a state judge.

 

• Just last week, the FBI admitted that it has resumed collecting Americans’ location data and movements – where we go and potentially those we meet with – by purchasing that data from third-party data brokers. Though this is not a Section 702-authorized program, it is a clear sign of the hunger the government has for collecting our data without a warrant.

Three evils emerge from what has become a routine domestic surveillance program.

• The first evil is that warrantless surveillance of Americans – which completely sidesteps the Constitution’s Fourth Amendment requirement for a probable cause warrant – gives the FBI a “backdoor search” loophole. By conducting fishing expeditions, the FBI can develop predicates for investigating Americans outside of constitutional boundaries.

The intelligence community objects to this characterization, stoutly maintaining that Section 702 is not directed at Americans. To quote Eddington again:

“The Foreign Intelligence Surveillance Court (FISC) and multiple congressional oversight reports have documented thousands of such searches annually, many involving wholly domestic criminal investigations with no foreign intelligence nexus.”

• The second evil is where this data can go. Once Americans’ data is collected by surveillance programs authorized by Section 702, it can be held for years. With a recent move by the Trump administration to tear down long-standing data silos between the agencies, this information could soon be at the fingertips of dozens of federal agencies, including the IRS, the Department of Homeland Security, and the ATF.

 

• The third evil is the ability of AI to quickly turn vast amounts of data from domestic surveillance into actionable intelligence against Americans.

PPSA agrees that Section 702 is an important authority, needed to keep Americans safe from foreign threats. We also believe that we can protect civil liberties and national security at the same time. There is no reason for Members of Congress to be panicked by a needless legislative game of chicken.
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Defenders of civil liberties should stand together to test the value of various reform amendments in the crucible of a much-needed open debate.

We usually think of the government’s domestic surveillance abuses as violations of the Fourth Amendment protections against warrantless searches. Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted to monitor foreign threats on foreign soil. In practice, however, it has been used by the FBI to sweep up the communications of millions of Americans on American soil and to specifically surveil thousands of Americans – all without warrant.

Now, with a House vote looming in April, Congress is considering a “clean” reauthorization – one that stiff-arms debate over amendments that would impose basic guardrails on warrantless surveillance of Americans.

What is obvious – but just as alarming – is that a “clean” reauthorization could also threaten Americans’ Second Amendment rights.

Congress has long prohibited the creation of a federal registry of American gun owners. Yet, as Cato Institute scholar Patrick Eddington explains, Section 702 might offer the government a workaround of the Firearm Owners Protection Act of 1986 “at a level of commercial granularity that a formal registry might never achieve.”

How? Many handguns, rifles, and much of the ammunition sold in the United States are manufactured abroad. These foreign manufacturers are caught in the NSA’s global trawl as they communicate with their U.S. operations about everything from inventory management to purchase orders.

Eddington writes on the Cato Institute Blog:

“When Americans buy a Glock pistol, a Beretta shotgun, or a box of Czech-made Sellier & Bellot ammunition at their local gun store, they likely assume the transaction is between them, the dealer, and perhaps the ATF’s background check system. What they almost certainly don’t know is that the business communications underpinning that entire supply chain – every email, phone call, and text between U.S. importers and their foreign suppliers – is almost certainly being vacuumed up and stored under the Section 702 database.”

Layer onto this the current administration’s push to break down long-standing agency data silos under Executive Order 14243. It takes little imagination to see how the FBI, ATF, or the Department of Homeland Security might do exactly what Congress forbids – create a registry of Americans who own firearms. Add artificial intelligence, and the creation of such a registry goes from possible to easy.

Worse, Section 702 data is retained for years. Even if the current administration does not exploit this capability, it could become a very useful tool for the next administration.

Section 702 thus arms the government with the means to violate not only the Fourth Amendment, but the Second – and even the First. The ability to track what people say, where they go, and whom they associate with opens the door to mapping political, religious, and social networks – core First Amendment activities.

More abuses may soon come to light. By April 10, the administration must produce documents in response to a Cato Freedom of Information Act request detailing instances of noncompliance with the law by federal agencies over the last two years.
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Section 702 has been too prone to scandalous violations of Americans’ rights to give it a green light with no reforms. For the sake of our First, Second, and Fourth Amendment rights, this surveillance authority must be open to debate and reforms.

Talk of a “clean reauthorization” of Section 702 of the Foreign Intelligence Surveillance Act (FISA) is growing on Capitol Hill. But as Washington starts to dream of an easy vote that includes no surveillance reforms, the American people are not having it.
 
FISA Section 702 is an authority enacted by Congress to enable the surveillance of foreign threats on foreign soil, but it has often been used by the FBI in recent years to spy on the communications of millions of Americans. Included in that debate is concern over the way in which a dozen federal agencies – ranging from the FBI to the IRS – are purchasing Americans’ personal information from shady third-party data brokers.
 
A new poll commissioned by Demand Progress shows that Americans are paying attention to this threat to privacy – and they don’t like what they see.

• Only 12 percent of voters, including 17 percent of Republicans and eight percent of Independents, believe Congress should renew surveillance and monitoring activities without reforms.

 

• Some 37 percent of voters, including a plurality of 41 percent of Republicans, think FISA should only be reauthorized if it contains restrictions on government purchases of our personal data.

 

• Another 37 percent don’t want the program reauthorized at all.

The poll also shows that the recent dust-up between the Pentagon and AI company Anthropic is focusing the public’s attention on the potential for the government to use artificial intelligence to drive the surveillance of the American people to unprecedented levels.
 
This is especially true as the administration works to dismantle long-standing information silos and remove safeguards that once limited the sharing of Americans’ private data between agencies – from the Department of Homeland Security to the FBI and the IRS.
 
AI surveillance, with data collected under Section 702, could allow government employees across the federal bureaucracy to run warrantless searches of Americans’ private communications. Combined with the vast amounts of Americans’ personal data that federal agencies purchase from third-party data brokers, AI-run surveillance programs will have truly frightening reach.
 
The poll also shows that Americans are watching the AI debate and that a majority see it as a threat to privacy.
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• Sixty-six percent of voters – including 76 percent of Independents and 52 percent of Republicans – believe the government should not be able to force AI companies to grant unrestricted access to analyze Americans’ personal data.

Before Congress embraces a comfortable conformity on a “clean” reauthorization of Section 702 or any other surveillance authority, Members would do well to pay attention to the rising alarm over surveillance among their constituents.

The Government Surveillance Reform Act (GSRA), which would stop federal agencies from buying Americans’ most personal data from shady data brokers while reforming Section 702 of the Foreign Intelligence Surveillance Act (FISA), was reintroduced on Thursday with strong bipartisan and bicameral support.

Sens. Mike Lee (R-UT) and Ron Wyden (D-OR), and Reps. Warren Davidson (R-OH) and Zoe Lofgren (D-CA) are the sponsors of the GSRA, which balances comprehensive surveillance reform with national security.

“It leaves in place the authorities needed to protect the American people from foreign threats, while reforming what Senator Lee calls ‘illegal government spying’ directed at Americans,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and now Senior Policy Advisor to PPSA.

Cosponsors of the bill include Sens. Cynthia Lummis (R-WY) and Elizabeth Warren (D-MA), and Reps. Sara Jacobs (D-CA) and Pramila Jayapal (D-WA).

Among its many reforms, the GRSA:

Closes the backdoor search loophole: By requiring a warrant for the government to inspect Section 702 information, the bill stops federal agents from fishing through warrantlessly obtained data to generate suspicions about Americans.

Ends reverses targeting: It prohibits the use of foreign surveillance as a pretext to gather data on Americans.

Closes the data broker loophole: The bill bans the practice of federal agencies buying some of our most personal information from data brokers without a warrant.

Repeals the “Make Everyone a Spy” provision: The bill repeals a controversial 2024 provision that allows the government to force millions of Americans and companies to secretly spy on its behalf.

Updates privacy protections for AI and other modern technologies: The bill’s warrant requirement extends to Americans’ location information, web browsing data, search and chatbot records, and the wealth of data collected by modern vehicles.

Expands the use of amici in the secret FISA courts: The bill mandates increased use of amici curiae – experts in privacy and civil liberties – to represent the civil rights of the American people in sensitive cases before secret courts that have no adversarial process. It also provides these advisors to the court with full access to all relevant information needed to do their job.

“It has been said that the Government Surveillance Reform Act is the most balanced and comprehensive surveillance reform bill in almost half a century,” Bob Goodlatte said. “It enjoys deep bipartisan and bicameral support because many Members of Congress are alarmed by the abusive and pervasive surveillance of the American people.
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“This well-crafted legislation must be included in the reauthorization of FISA Section 702 in April.”

​The Project for Privacy & Surveillance Accountability has filed an amicus brief in the U.S. Supreme Court case United States v. Chatrie, warning that geofence warrants threaten not only Americans’ Fourth Amendment rights, but also our religious liberty and freedom of association.

PPSA previously urged the Court to hear this case and rein in geofence warrants as modern digital general warrants. These warrants compel technology companies to turn over location data for every device within a defined geographic area. Investigators then sift through the movements of potentially hundreds –sometimes thousands – of people in hopes of identifying a suspect.

Now that the Court has granted review, PPSA explains in its amicus brief that this dragnet surveillance exposes something far more sensitive than physical location. Location data can reveal belief, identity, and association.

“Geofence warrants also threaten core First Amendment freedoms by enabling surreptitious mass intrusions into sensitive spaces like places of worship,” the PPSA brief explains. 

A geofence warrant could easily capture the identities of everyone attending a church service, synagogue gathering, mosque prayer, or religious conference. In practice, that means the government could obtain what amounts to a list of worshippers.

The facts of the case illustrate the danger. The geofence search used by investigators in Chatrie encompassed Journey Christian Church in Midlothian, Virginia, capturing the location data of anyone present at the church at that time who carried a smartphone with Google location services enabled. 

That possibility raises profound First Amendment concerns. Location data can expose deeply personal religious information, including “faith affiliation; sacrament participation; belief shifts via changing attendance or visiting a new church; or involvement in recovery ministries.” 

The Supreme Court has long recognized that government surveillance of association can chill constitutional rights. Americans who believe their religious participation may be quietly recorded by the government may think twice before attending services or participating in religious life.

That chilling effect is precisely what the First Amendment was designed to prevent.

PPSA’s brief urges the Court to recognize that geofence warrants do more than raise Fourth Amendment questions about search and seizure. They also threaten the First Amendment freedoms that protect Americans’ ability to worship, gather, and associate without government monitoring.

After all, in the digital age, tracking where people go can reveal who they are, what they believe, and whom they stand beside.
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The Supreme Court now has the opportunity to make clear that the Constitution protects those freedoms from the reach of dragnet surveillance.

​The media reported on the drama of the Pentagon’s AI contracts as a horse race: Anthropic tried to limit what the War Department could do with the company's Claude AI product. The administration subsequently rescinded all government contracts with the company. OpenAI offered its products as the alternative and won the day.

But beneath this drama lies a deeper and more dangerous reality: In the absence of meaningful guardrails, the AI tech of any company can be used for surveillance and – if combined with data collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA) – could allow government employees across the federal bureaucracy to run searches on Americans’ private communications.

Such AI-powered surveillance could extend far beyond the Department of War’s use cases and even the Justice Department’s FBI investigations. Government AI-enabled mass surveillance of the domestic population would:

• Not be subject to any oversight authority – constitutional or statutory

 

• Not be encumbered by recent reforms like 2024 RISAA (Reforming Intelligence and Securing America Act)

 

• Be supercharged by the dismantling of long-standing information silos and the removal of safeguards that once limited the sharing of Americans’ private data between agencies – from the Department of Homeland Security to the IRS.

 

• All done without a warrant – without any court supervision of the government’s invasion of your privacy.

The danger of AI surveillance in a government that shares data between agencies should prompt Congress to strengthen Fourth Amendment privacy protections. With such a vast datascape available to the world's most powerful government – where many existing restrictions have already been weakened – we otherwise risk the irrevocable loss of personal privacy and the rise of a permanent surveillance state.

We need to come to terms with the fact that AI tech makes rummaging through our private lives and personal histories easier and faster than anyone could have imagined even a few years ago. Americans’ communications could become permanently accessible to the prying eyes of government agents in almost any agency with a whim (or a political directive) to pursue.

It wasn't supposed to be this way. AI was supposed to have guardrails, as was Section 702, enacted by Congress to enable the surveillance of foreign threats on foreign soil, but has instead been used by the government to search the private communications of Americans without a warrant.

RISAA was a noble attempt to rein in the misuse of Section 702 as a domestic spy tool. Its reforms included oversight and restrictions on FBI searches involving people inside the United States. It implemented rules for queries involving high-profile groups or individuals. It established training and accountability measures, while enhancing oversight of the two secret courts FISA created.
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These were important reforms, but they were weakened by last-minute changes to the bill. When Section 702 comes up for renewal next month – this time in the context of an AI juggernaut – it may well be our last chance to protect our freedoms while protecting national security. 

​ICE has become enough of a household word that, like NASA, it’s no longer necessary to spell out its acronym. ICE’s aggressive enforcement of immigration law, now the nation’s hottest political flashpoint, is dividing Americans like nothing else in recent memory. Regardless of where you stand on ICE and illegal immigration, we should all agree that ICE’s massive expansion into domestic surveillance is a grave concern for anyone who values the Fourth Amendment and privacy.

When a protester recording video on her phone wants to know why a masked agent is taking down her information and he replies – “Because we have a nice little database and now you’re considered a domestic terrorist!” – Sheera Frankel of The New York Times rightly suggests that we’ve entered uncharted territory. Political dissent is now being treated as domestic intelligence.

The masked agent was not kidding. The Department of Homeland Security (DHS) is launching a pressure campaign to get Big Tech to identify persons who post content deemed “critical” of ICE. Rather than traditional investigative work, the government appears to be leaning on something akin to an abuse of process, filing hundreds – if not thousands – of subpoenas intended to compel tech giants to cough up user data.

This data grab of lawful speech is unprecedented. It amounts to using an exceptional legal maneuver – an emergency procedure meant for crimes like child trafficking – to collect constitutionally protected political expression. And let’s be clear about the constitutional claim: The contents of our “friends-only” digital posts are modern “papers and effects,” private possessions the Fourth Amendment was designed to shield from generalized searches.

If tech companies cave (and, as highly regulated companies, they likely will), and ICE plugs the data of protesters into its increasingly Orwellian surveillance architecture, then the genie will already be out of the bottle. Once such a capability is developed, it rarely remains confined to a single mission or a single agency. Surveillance tools migrate. Authorities expand. Bureaucracies replicate what works.

These tools – algorithms housed in digital fortresses – will almost certainly be shared with the FBI, IRS, FTC, SEC, and a dozen other agencies eager for their piece of the silicon pie. And they won’t just target Americans who are anti-ICE. Depending on the political winds of the day, databases built to track one form of dissent can just as easily be turned against pro-choicers, pro-lifers, critics of the administration in power, progressives, or MAGA supporters.
​
This looks less like law enforcement and more like the construction of a permanent political-intelligence system – the start of a security-state apparatus on a scale never before seen, primarily and perversely used to surveil and catalog the political beliefs of Americans. Congress should examine this emerging capability and look to install guardrails when it debates surveillance policy in March and April.

Artificial intelligence has handed government surveillance a superpower the Founders never envisioned – the ability to quietly track millions of Americans, then rewind their movements later without a warrant.
 
In United States v. Slaybaugh, PPSA is urging the U.S. Court of Appeals for the Eleventh Circuit to draw a constitutional line around the warrantless use of automatic license plate reader (ALPR) databases. At stake is more than one defendant’s conviction. The court must decide whether rapidly evolving surveillance tools will stretch the Fourth Amendment beyond recognition for all Americans.
 
When Public Data Becomes Private Surveillance

Law enforcement offers a simple argument with surface appeal: License plates are visible on public roads, so collecting them invades no one’s privacy. In our brief, PPSA details how that simple argument collapses before the reality of modern surveillance.
 
This case is not about a single camera capturing a passing car. It is the government’s ability to aggregate billions of scans into a searchable chronicle of a person’s life. ALPR systems collect time-stamped and geolocated images of every passing vehicle, and store them indefinitely, allowing officers to reconstruct travel histories “with just the click of a button.” 
 
Far from snapping one static image of a license plate, ALPR systems have the power to tail everyone and anyone in a given city or county. That power transforms fleeting public observations into something fundamentally different – a digital dossier revealing where we sleep, worship, seek medical care, protest, or attend political meetings.
 
The U.S. Supreme Court recognized this danger in Carpenter v. United States (2018), holding that long-term location tracking can trigger Fourth Amendment protections even when a person’s movements occur in public. While Carpenter involved the extraction of a suspect’s geolocation history from a cellphone tower, ALPR surveillance raises the same constitutional concerns – but at a vastly higher scale.
 
The Myth of a Numerical “Safe Harbor”

One of the most significant errors PPSA identifies in the lower court’s ruling is the idea that surveillance becomes unconstitutional only after it collects a certain number of data points or weeks of tracking. The federal court treated the retrieval of 72 plate “reads” over three weeks as too limited to reveal the whole of one person’s movements. This take misreads Carpenter.
 
The danger lies not in how many time police officers choose to view images, but in the existence of the massive surveillance database itself.
 
Car “Fingerprints” and “Digital Time Travel”

PPSA told the court:

• “In 2019 alone, 1 billion license plate scans were collected, with 99.9 percent not actively related to any criminal investigation. The ALPR system that collected Slaybaugh’s information, Flock, works by creating a ‘vehicle fingerprint’ that includes much more than just a license plate number. Each passing vehicle’s ‘fingerprint’ includes its color, make, model, and distinctive features, like a political bumper sticker. Flock then provides advanced search and artificial intelligence functions that can be used to list locations a car has been captured, create lists of cars that have visited specific locations, and even track cars that are seen together.”

With such databases, officers can effectively travel back in time and retrace anyone’s movements long before suspicion arises. That retrospective power, PPSA demonstrates, far exceeds the general warrants and other abuses the Fourth Amendment was designed to restrain. In colonial America, the King’s agents lacked the ability to catalog every citizen’s movements. Modern technology has erased that practical limitation. Without constitutional safeguards, PPSA warns, the government can monitor entire populations’ travel histories and associations – whether political, romantic, or religious.
 
From License Plates to a Surveillance Ecosystem

ALPR systems are only one piece of a rapidly expanding surveillance architecture. PPSA warns that these tools increasingly integrate with other technologies – including AI analytics, neighborhood camera systems, and vast databases of commercial data sources holding personal information.
 
The concern is not simply about license plates. It is about the emergence of an interconnected surveillance ecosystem capable of mapping people’s lives in unprecedented detail.
 
The Solution Is Already in the Constitution

PPSA’s position is not anti-technology. We acknowledge that modern policing can benefit from advanced tools – so long as they operate within constitutional limits.
 
The solution is straightforward and familiar – requiring law enforcement to obtain a warrant supported by probable cause before querying historical ALPR data. That safeguard preserves investigative power while ensuring judicial oversight of government tracking.
 
The Future of Privacy
​
The Eleventh Circuit’s decision may shape how courts treat digital tracking technologies far beyond license plate readers. As geofenced surveillance, AI drones, and integrated camera networks expand, the dangers of technology will only become more acute, and the constitutional principles at issue in Slaybaugh will only become more urgent.
 
Slaybaugh may well determine whether every time we get in our car, we are freely roaming public streets or becoming caught in a permanent dragnet.

The FBI calls them “assessments.” Americans experience them as investigations. 
 
A new Government Accountability Office (GAO) report suggests that many supposedly preliminary inquiries function as probes in waiting – particularly when they involve politics, journalism, or religion. According to the report, posted by the Cato Institute, more than 1,000 individuals and organizations have been subjected to preliminary assessments for investigation, a scope that should trigger immediate congressional concern. (Hat tip to Cato’s Patrick Eddington.)
 
The most alarming category involves so-called “Sensitive Investigative Matters,” or SIM assessments. These are FBI inquiries potentially into political campaigns and candidates, elected officials, journalists, religious leaders, or any other Americans engaged in core First Amendment activities. If any government scrutiny demands transparency and restraint, it is surveillance that begins with our rights to freedom of speech, belief, and association.
 
The GAO found that the FBI converted 48 percent of SIM assessments into Preliminary or Full Investigations. Eddington reports that these sensitive cases were 3.5 percentage times more likely to escalate than ordinary assessments – a statistical red flag for anyone told these probes are narrow, cautious, or exceptional.
 
Eddington writes:
 
“That’s especially alarming since, under Preliminary or Full Investigations, the agents running the case can employ wiretaps or other extremely intrusive and clandestine investigative techniques.”
 
Those tools – from electronic surveillance to confidential informants and covert collection – once deployed, are difficult to unwind. That is why Congress must demand answers before, not after, it reauthorizes Section 702 of the Foreign Intelligence Surveillance Act, which expires in April.
 
Before granting renewed surveillance authority, lawmakers should require the FBI to disclose whether SIM assessments have targeted:
​

• Members of Congress

 

• Political candidates and parties

 

• News organizations, think tanks, and NGOs

 

• News reporters and opinion journalists

 

• Churches, temples, and mosques.

At a minimum, the Bureau should provide the relevant oversight committees – especially the House Judiciary Committee – with a full accounting of past SIM targets and the total number of assessments elevated into full investigations. Congress should also ask who authorized these escalations. Were investigative decisions influenced by political appointees? 
 
Two questions cut to the core of our concerns about protecting civil liberties. Why are First Amendment-sensitive assessments more likely to escalate than ordinary cases? And was Section 702 data – intended for foreign intelligence collection abroad but routinely used for warrantless “backdoor” searches of Americans – part of the analytical process driving these decisions?
 
The Founders knew the danger of unchecked investigations aimed at political and religious dissent. They rebelled against general warrants that allowed agents of the Crown to search first and justify later. SIM assessments risk reviving that same model – quiet surveillance justified by internal labels rather than public law.
 
Surveillance powers are easy to grant and hard to retract. Congress should not renew them without first understanding how existing authorities have been used against Americans exercising our most basic freedoms.
 
Congress should make it clear: No answers. No reauthorizations.

​The recent Senate Judiciary Committee hearing on the “review and reform” of the Foreign Intelligence Surveillance Act (FISA) yielded some fireworks and surprises that herald a robust and rowdy debate to come.

One FISA authority, Section 702, is due to sunset in April. As the Section 702 renewal debate heats up, that authority – enacted by Congress to enable spying on foreign targets on foreign soil without the need for a warrant or court order – will come under intense scrutiny for being used by the government in recent years to warrantlessly access millions of Americans’ private communications.

But a host of other surveillance authorities will also be debated. Liza Goitein of the Brennan Center for Justice told the committee:

“Section 702 is part of an ecosystem of often overlapping surveillance authorities, and when one avenue is closed off, the government can often turn to another or exploit gaps in that network to conduct surveillance with no statutory authority at all.”

One of these gaps is the “data broker loophole.” This is the routine practice of multiple federal law enforcement and intelligence agencies – including the FBI, the IRS, and the Department of Homeland Security – purchasing Americans’ private digital data from data brokers. Once purchased, agencies assert a right to examine Americans’ data without a warrant.

Adam Schiff’s Tough Questions About the Data Broker Loophole

In the hearing, Sen. Adam Schiff (D-CA) asked Goitein (see the 1:30 mark) about how “law enforcement and intelligence agencies might circumvent the requirements of the Fourth Amendment by acquiring information from third-party data brokers.”

Sen. Schiff highlighted the disingenuousness of the intelligence community and its workaround for the Electronic Communications Privacy Act, which prohibits direct sales of Americans’ personal data by telecoms to government agencies. But telecoms are allowed sell Americans’ personal information to data brokers for commercial purposes. Federal agencies exploit this loophole by claiming that there is nothing to prevent them from also purchasing Americans’ data from those brokers.

Liza Goitein made it clear that such “gaps” in the surveillance “ecosystem” should be very much a part of the Section 702 debate. “And the gap I am most worried about is this data broker loophole. Federal agencies are buying their way around constitutional and statutory requirements on a routine basis.”

Sen. Josh Hawley took a different tack, focusing on a contradiction in the government’s lenient definition of what qualifies as a search of an American’s communication.

Josh Hawley Schools Surveillance Advocate

“You said that Section 702 cannot be used to target Americans,” Sen. Josh Hawley (R-MO) (see the 1:27 mark) said to Adam Klein, Director of the Strauss Center at the University of Texas at Austin. “But that’s cold comfort, isn’t it” he said, “to those subject to 278,000 improper searches – United States persons that we were talking about – in 2022 alone?”

“I mean, sure, the statute doesn’t permit them to be targeted, but when they have their personal information directly queried or improperly searched, what’s the difference?”

Klein responded that Americans should take comfort from the fact that Section 702 is meant to target foreigners overseas, not Americans.

Hawley fired back:

“As someone who had his cellphone tapped, improperly, by the United States government, by the way, why would I feel any better if I am told, ‘the U.S. government improperly queried your personal information … but don’t worry, they weren’t going after you, in the first instance. They just happened to have all of your stuff and then they look into them because there are no effective constraints on them. Why is that a good thing?”

Klein pivoted to the issue of surveillance of Members of Congress, whom he said had “a heightened expectation of safeguards in this area.”

Hawley cut him off to ask why this expectation doesn’t also protect journalists or Americans who merely travel overseas or have family overseas. Hawley said the government effectively says, “Oh, don’t worry, you weren’t targeted. I mean you were effectively targeted.”

Sen. Hawley highlighted the contradiction in how the search of an American person’s data is not treated as a separate Fourth Amendment event. On one hand, Hawley said, the government promises not to target Americans. On the other hand, it searches Americans’ data.

“You can’t have it both ways,” Sen. Hawley said, adding, “That looks an awful lot like a search and seizure under Fourth Amendment.”
​
When Sens. Hawley and Schiff – at opposite ends of the political spectrum – pose such tough questions, it is clear that the emerging bipartisan surveillance debate in Congress is going to heat up.

​Look up. There is a good chance a drone is looking back.
 
From government agencies to insurance companies, drones now routinely patrol American neighborhoods, hovering over backyards and rooftops in search of violations, liabilities, and profit. What was once pitched as a tool for emergencies or remote inspections has quietly become a pervasive system of aerial surveillance of American homes without public consent.
 
In Virginia, under current law, surveillance drones may conduct close inspections of private property without a warrant in emergency or “exigent” circumstances. These exceptions include searches for a missing child or an elderly person who has wandered off, or tracking a dangerous suspect on the run.
 
Now a bill introduced in Virginia’s lower chamber by Alfonso Lopez, a Democratic member of the House of Delegates, would expand this list of emergency exceptions in which the Fourth Amendment’s requirement for a probable-cause warrant can be swept aside. If this bill passes, the Commonwealth of Virginia will be able to spy on citizens to make sure they follow environmental rules on sediment control and erosion management, as well as regulations regarding water and wetlands.
 
In short, this bill would allow the Virginia Department of Environmental Quality to deploy surveillance drones not for the usual dire exigent circumstances, but just to make sure that property owners are in compliance with that department’s environmental regulations.

Virginia’s proposal shows how easily “emergency” drone powers can be repurposed for routine regulatory enforcement. But government is not the only actor exploiting the skies. As drone surveillance becomes normalized, private companies have eagerly followed – deploying the same technology not to enforce the law, but to grow profits.
​
Texas provides one example of how the private sector is using drones to impinge on homeowners’ privacy. KUT News in Austin interviewed dozens of homeowners, industry experts, and insurance watchdogs, and reviewed hundreds of pages of complaints and state filings, to document how insurance companies are using aerial drone technology to spy on their customers.
 
KUT reports that poor images of homes often prompt insurance providers to unfairly raise rates or cancel policies. Customers have been told to replace their roofs when in fact their roofs only need a good cleansing rain. As Audrey McGlinchy of KUT writes: “And with the proverbial click of a button, companies can decide if they want to renew a homeowner’s policy.”
 
How pervasive is commercial surveillance? KUT reports that one aerial-imaging technology firm providing imagery for insurance companies estimates there are “eyes on 99.6 percent of the country’s population.”
 
State laws and courts are not adjusting to this new reality. For example, in 2024 the Michigan Supreme Court punted on the Fourth Amendment implications of a township’s low-flying drone that crossed over a couple’s fence line to search for zoning violations. At the national level, the U.S. Supreme Court has yet to fully define drone-specific privacy rights. 
 
Lawmakers and courts need to catch up to a simple reality – pervasive drone surveillance over homes is no longer hypothetical, rare, or futuristic. It is routine, largely unregulated, and already being used to punish Americans financially and intrude on their privacy. If the Fourth Amendment is to mean anything in this age of mass aerial surveillance, our laws must recognize that what hovers over our roofs and backyards today can be just as invasive as a warrantless step into our homes.

​Stewart Baker, former general counsel of the National Security Agency, opened his testimony before the Senate Judiciary Committee last week with a startling, if somewhat insolent, proposal.

Baker’s proposal came at the beginning of that hearing on the “review and reform of the Foreign Intelligence Surveillance Act,” which centered around FISA Section 702. This is an authority enacted by Congress to enable spying on foreign targets on foreign soil without the need for a warrant or court order. Yet it has been used in recent years to enable warrantless government access to millions of Americans’ private communications.

Section 702 sunsets in April 2026 after the last reauthorization in April 2024. The reauthorization debate now beginning on Capitol Hill is being used to explore not just Section 702, but many other surveillance authorities associated with it as well.

“It’s time to say – let’s stop putting a sunset on 702,” Baker said. “It is only putting our most valuable security tool up for grabs every couple of years and then praying that there is enough bipartisan spirit in the Congress to do what needs to be done.”

This flew in the face of remarks by Chairman Chuck Grassley (R-IA) and Ranking Member Dick Durbin (D-IL).

Sen. Grassley said that while Section 702 is an “essential national security and intelligence tool,” he believes that “constant Congressional oversight and vigilance is also essential to ensure that this authority is exercised responsibly.”

The chairman also expressed concern about FISA’s “reach” and said there is “still more work to be done.”

To underscore this point, Sen. Grassley reminded the committee that he and Sen. Durbin have complained that an oversight measure passed into law in 2024 is being blocked by the Department of Justice.

That law allows senators and staff members with high levels of security clearance to attend hearings of the Foreign Intelligence Surveillance courts. But an onerous set of restrictions imposed by the Justice Department under the Biden administration and continued by the Trump administration has made it impossible for Members of Congress to attend the hearings with staff – or even to discuss them with anyone, whether cleared staff or other senators.

That is not a guardrail. It is a gag order.

The Justice Department also asserts a right to remove senators and Members of Congress at will. This is peculiar, given that the right to remove people from a courtroom is normally exercised by the presiding judge, not a functionary from the executive branch.

Ranking Member Sen. Durbin echoed the chairman on their “responsibility to conduct oversight” of Section 702. “For years the government has used it as a domestic spying tool to collect millions, maybe billions, of Americans’ private communications.”

Sen. Durbin added that the government has been:

“Reading our text messages and emails, and listening to our phone calls, all without a warrant requirement of the Fourth Amendment … Section 702 has been abused to spy on business and religious leaders, political parties, Members of Congress, campaign donors, journalists, and political protesters of all stripes.”

The intelligence community has long played clever word games with Section 702 to enable such warrantless domestic spying. And when federal agencies are called out on their domestic spying, more often than not they fail to respond to their putative overseers on the Hill or to innumerable Freedom of Information Act (FOIA) requests filed by PPSA and other civil liberties organizations.

Consider the letter of protest Sen. Grassley and Sen. Durbin sent in November to Attorney General Pam Bondi asking her to stop those executive branch restrictions on congressional oversight at the FISA court hearings.

Three months have passed and Attorney General Bondi has yet to respond to the Chairman and Ranking Member of the Senate Judiciary Committee.
​
Could we have a better example of why senators believe Congress must use sunsetting and other robust measures to try to compel oversight of an intelligence community that refuses to answer even basic questions?

​At a Senate Intelligence Committee hearing today (see 54:25), Sen. Ron Wyden (D-OR) probed Lt. Gen. Joshua Rudd – nominated to lead the National Security Agency – on whether he would obey the Fourth Amendment’s requirement for a probable cause warrant before surveilling the communications of American citizens in programs authorized by Section 702 of the Foreign Intelligence Surveillance Act.
 
That authority was enacted by Congress to enable the surveillance of foreign terrorists and spies on foreign soil. The National Security Agency’s trawl of global communications has since become a resource for U.S. intelligence agencies to routinely spy on the communications of American citizens and other “U.S. persons” on American soil.
 
Given that Congress is beginning to debate whether to continue the risk Section 702 poses to Americans’ privacy – with a vote on its reauthorization in April – you might think that Lt. Gen. Rudd would have a good grasp of the background on this issue, if not an actual opinion.
 
The hearing revealed that he has neither.
 
In response to Sen. Wyden’s questions, Lt. Gen. Rudd replied with non-answers. Worse, he admitted that he really didn’t understand the privacy issues at the heart of the looming Section 702 debate.
 
Sen. Wyden framed his questions with a quote from Benjamin Franklin, who wrote: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Sen. Wyden said that he sees “striking that balance” between safety and liberty as “essential.”
 
The senator then asked: “General, if you are directed to target people in the United States for surveillance, will you insist that there will be a judicial warrant?”
 
General Rudd replied: “What I can tell you, senator, is that if confirmed I will absolutely commit to executing the foreign intelligence mission of the NSA in accordance with the authorities it has been given and within all applicable laws.”
 
Sen. Wyden came back: “That is about as vague as anything I’ve heard on the subject. And it seems to me that unfamiliarity with basic constitutional rights is not something that can be accepted in this position. It’s so crucial. I continue to believe that what I described for you is not mutually exclusive. Smart policies give you security and liberty. Not so smart policies give you less of both.”
 
Sen. Wyden again asked whether Lt. Gen. Rudd could give us some insight into his thinking. Rudd gave another boilerplate non-answer answer.
 
Sen. Wyden asked: “Do you believe that U.S. person searches of Section 702 collection should require a warrant except in emergencies, which has been largely the position of those who would like to find some common ground as we go forward?”
 
General Rudd replied: “Senator that’s a topic I’d need to look into, and get a better understanding of, and give you a more fulsome and complete answer on that one.”
 
An informed officer might have turned the tables on the senator and noted that a warrant requirement is set to be debated and voted on by Congress in April. He could then have sat back and added, “I will execute whatever laws you, Senator Wyden, and your colleagues pass.”
 
But Lt. Gen. Rudd did not know to do that. Instead, he revealed he wasn’t even conversant with the issue. Not a good look at the hearing – and not very reassuring for the American people.

​The ACLU’s Jay Stanley just published a critique of the increasing push by states to adopt digital ID systems. It’s his fifth admonition in as many months, and the message is more urgent than ever: the digital ID bandwagon is becoming a rush job that threatens to discard privacy guardrails.

Of the many possible pitfalls, the greatest may be the ability of authorities to “un-person” someone. In the parlance of Orwell and his novel 1984, an “unperson” simply vanishes as every last record of that person’s existence is expunged.

Stanley's version of Orwell hinges on what happens when authorities revoke an ID that exists only in digital form. In his new essay, “How to Give the Government New Power to ‘Un-Person’ Someone, in Three Easy Steps,” Stanley unmasks the underlying features of digital IDs that can be revoked at will:

• It’s about control: “The big push for state digital driver's licenses that we’ve been warning about is effectively a movement to increase the power of big companies and government to control individuals.”

 

• It’s about power: “The power to revoke people’s IDs, cutting off in a single stroke their ability to access their accounts, visit much of the Internet, access government services, start a new job, obtain healthcare, and who knows what else. In short, kneecap their ability to function effectively in society.”

 

• It’s about dependency: “Make it frictionless to present an ID, which will make it easy for every business to demand your ID.”

 

• It’s a universal ID: “Build a new digital identity system, such as digital driver’s licenses, that comes to serve as the proof of identity (and age, and residency, and other characteristics) for the vast majority of the population in the vast majority of use cases.”

 

• It’s an at-will free-for-all: “People could be un-personed because of simple errors, because they have unfairly been accused of wrongdoing, or out of abusive targeting for political reasons.”

 

• It’s too easy: “With digital licenses, state governments can create a system that allows them to … reach into your digital wallet in your phone and remotely deactivate your ID.”

 

• It avoids individuality: “Don’t create protections for individuals (such as those that some states have erected around the scanning of barcodes on physical licenses).”

 

• Put plastic and paper on the road to extinction: “Before long, physical IDs may be treated as a second class after-thought as digital IDs become de facto mandatory.”

Stanley recommends that lawmakers impose statutory limits on the revocation of state-issued IDs, along with strong due-process protections. He also recommends adding technical guardrails against abusive revocation.
​
Stanley’s original piece goes into much more detail. We also recommend GovernmentTechnology reporter Nikki Davidson’s recent interview with Stanley – it is more than worth ten minutes of your time.

Has there ever been a more Orwellian-sounding program than “Total Information Awareness?”

This was the post-9/11 brainchild of the Defense Advanced Research Projects Agency (DARPA), a think tank for the Department of Defense. The idea was simple: collect all data on all Americans, then data-mine that giant pile of information to identify “terrorist patterns.”

The goal of Total Information Awareness was “predictive policing,” applying the same data-modeling techniques credit card companies use to spot fraudsters in order to catch terrorists before they act. The premise was dubious at its core – identifying terrorist patterns involves a far greater order of complexity than spotting someone misusing a credit card number.

Worse, in order for Total Information Awareness to work, the government would need to have access to virtually all information about every American. It would be like stamping out drunk driving – which every year kills four times as many Americans as the terrorist attacks of 9/11 did – by stopping every motorist every few miles to give them a breathalyzer.

Admiral John Poindexter, one of the masterminds of the project, wasn’t kidding when he called Total Information Awareness a “Manhattan Project for counterterrorism.” Sen. Ron Wyden (D-OR) called it the “biggest surveillance program in the history of the United States.” The ACLU in 2003 called it “the closest thing to a true ‘Big Brother’ program that has ever been seriously contemplated in the United States.”

But nothing was more telling than the slogan of the Information Awareness Office, the Pentagon office that ran the program: “Knowledge is Power.” But power over whom and for what purpose? Total Information Awareness could be used for terrorism today, tax compliance tomorrow, and political surveillance the day after that.

Congress was sufficiently alarmed to pull the plug on the Information Awareness Office in 2003. But in 2026, to quote the little girl in Poltergeist II, “they’re back.”

This time, the architects of total surveillance have been smart about branding. An executive order issued in March was titled “Stopping Waste, Fraud, and Abuse By Eliminating Information Silos.” It instructs all agencies and departments to make their information on Americans available to all other agencies.

These silos were there for a reason. They were put there by the Privacy Act of 1974, often described as “an American Bill of Rights on data.” The law’s purpose was to establish a Code of Fair Information Practice to govern the collection, maintenance, use, and dissemination of on all personally identifiable information (PII) of Americans. Despite this law, federal agencies are complying with the executive order, seeking data from each other and from the states (though 20 blue states are suing in federal court to stop data sharing).

The Immigration and Customs Enforcement agency (ICE) is now the gleaming tip of a data “ICEberg,” after a federal judge ruled that the Centers for Medicare and Medicaid Services can share the personal Medicaid data of 80 million Americans. Many agree with the administration that Medicaid needs to be reserved for Americans, not illegal aliens. But no one believes that there is anything close to 80 million illegals in the United States. How might all this PII on Americans be used? How long will this data be kept? How might it be shared with other agencies for very different purposes?
​
“Every generation imagines itself to be more intelligent than the one that went before it, and wiser than the one that comes after it,” George Orwell wrote. To blithely discard the guardrails of the Privacy Act – and to trust that vast amounts of highly personal information won’t one day be abused by the FBI, the IRS, and other agencies – is either cynical or beyond naïve.

​PPSA has long warned that allowing federal intelligence and law enforcement agencies to purchase Americans’ personal digital data from data brokers would build a surveillance state. Now the federal government has put in place the most effective tools to activate that surveillance state in America.
 
This is the natural consequence of two technologies purchased by Immigration and Customs Enforcement (ICE). Whether you believe ICE’s approach to mass deportations is necessary, or an exercise in cruelty, there is no question that what ICE is doing with technology is guaranteed to transform the whole balance between the federal government and its citizenry. It is deploying two forms of surveillance without a warrant that can track people to meetings with friends, their place of work, and homes, their houses of worship, while also drawing on data gleaned from social media to compile dossiers on Americans’ beliefs and personal associations. In using these technologies, ICE often doesn’t know if the target is an American citizen or someone who is not lawfully in this country.
 
Joseph Cox of 404 Media, in his most recent blockbuster revelation, details the consequences of two technologies purchased from a company called Penlink.
 
One such technology is Webloc, which allows ICE to draw a rectangle, circle, or polygon around a portion of a city and pick out smartphones of interest. Cox writes that “they can get more details about that particular phone, and, by extension, its owner by seeing where else it has traveled both locally and across the country. Users can click a route feature which shows the path the device took.”
 
Webloc’s surveillance relies on exploiting code in ordinary apps on our phones, like games and weather apps, that track our location. The rest comes from data brokers that sell our private information through real-time bidding. In the digital age, we are all standing on the digital auction block.
 
Another Penlink technology, called Tangles, is a social media monitoring product that can take an image of a person’s face on the street, identify that person, locate that person’s social media feeds, and produce a “sentiment analysis” from that target’s posts. At a glance, the government will have a file on your beliefs.
 
These new government capabilities should worry conservatives, libertarians, and MAGA supporters, as well as liberals and progressives. The effectiveness of such technologies makes it inevitable that it will spread beyond ICE to the FBI, IRS, and other agencies, as the government works to break down the traditional data silos between agencies. They are sure to be used against Americans by administrations of both parties.
 
Webloc and Tangles cost only a few million dollars – a rounding error for the federal government. As these capabilities expand and become daily practice, the constitutional balance of government by the consent of the governed – based on the Fourth Amendment’s requirement for a probable cause warrant – will inevitably give way to authoritarian control.
 
Only Congress can stop this. As the surveillance debate heats up ahead of the reauthorization of FISA Section 702 in April, Congress must urgently use that debate to pass a bill or an amendment that will restrict the currently unrestricted purchasing of Americans’ data by the government.
 
As an old Kenny Loggins rock song put it, “make no mistake where you are, your back’s to the corner … stand up and fight.” Let Congress know it is not acceptable for federal agencies to buy our private and sensitive data without a warrant.

​Michael Moore is a retired public-school teacher living in San Francisco. Nearly every day, as he drives to the store, to his sons’ schools, or to meet friends and family, his movements are watched and recorded at every turn. But he is not being tailed by a private detective or by the police.

Moore, like every other driver in San Francisco, is being tracked because he must navigate through the city’s network of almost 500 automated license plate readers (ALPRs).

These devices, operated by the San Francisco Police Department (SFPD), constitute a major link in the national surveillance network that the vendor Flock Safety is providing to state and local law enforcement. Moore has had enough. At the end of December, he filed a class action lawsuit in a federal courtroom on his behalf and on behalf of his fellow San Franciscans against the city and its police department over this continuous violation of their Fourth Amendment rights.

In his suit, Moore states that Flock ALPRs “make it functionally impossible to drive anywhere in the City without having one’s movement tracked, photographed, and stored in an AI-assisted database that enables the warrantless surveillance of one’s movements.”

Here are some of the topline revelations from Moore’s lawsuit:

Suspiciousness surveillance: Of the over 1 billion license plate scans collected by 82 agencies nationwide in 2019, “99.9 percent of this surveillance data was not actively related to any criminal investigation when it was collected.”

Creates “vehicle fingerprints”: “When Flock Cameras capture an image of a car, Flock’s software uses machine learning to create what Flock calls a ‘Vehicle Fingerprint.’ The ‘fingerprint’ includes the color and make and model of the car and any distinctive features, like an anti-Trump bumper sticker or roof rack. Flock’s software converts each of those details into text and stores them into an organized database.”

Tracks social networks: “Flock provides advanced search and artificial intelligence functions that SFPD officers can use to output a list of locations a car has been captured, create lists of cars that have visited specific locations, and even track cars that are seen together.”

Data stored indefinitely: “The data that Flock Cameras collect belong to the SFPD but Flock retains data on a rolling 30-day basis. Nothing, however, prevents the SFPD or its officers from downloading and saving the data for longer than SFPD’s 365-day retention period.”

Flock doesn’t just see and record – it thinks and analyzes:

“ALPR technology is a powerful surveillance tool that is used to invade the privacy of individuals and violate the rights of entire communities. ALPR systems collect and store location about drivers whose vehicles pass through ALPR cameras’ fields of view, which, along with the date and time of capture, can be organized by a database that develops a driver profile revealing sensitive details about where individuals work, live, associate, worship, protest and travel.”

Moore’s lawsuit poses a profound constitutional question: Can a city turn every resident into a perpetual suspect simply for driving on public roads?
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The Fourth Amendment was written to forbid dragnet surveillance untethered to suspicion, warrants, or individualized cause. Yet San Francisco has quietly constructed a system that records nearly every movement of its citizens, not because they are suspected of wrongdoing, but because technology makes it easy. If this practice is allowed to stand, the right to move freely without government monitoring may become a relic – honored in theory, but surrendered in practice to cameras, algorithms, and convenience.

​Fresh on the heels of the Bill of Rights’ 234th birthday comes a salient reminder of just how difficult it is for those in power to resist abusing their authority, and why the Fourth Amendment in particular is every bit as relevant today as it was in 1791.

Wilmer Chavarria is suing the U.S. Department of Homeland Security (DHS) for an incident in Houston in July. According to his lawsuit, U.S. Customs and Border Patrol (CBP) agents detained him, demanded his passwords, then searched the contents of his devices as he tried to enter the country at George Bush Intercontinental.

Actually, make that returning home rather than trying to enter – Wilmer Chavarria is as American as tarta de manzana. He’s a school superintendent in Vermont, where apples are the state fruit and apple pie is literally the state pie (either à la mode or with cheddar). Born in Nicaragua, Chavarria became a citizen of the United States in 2018 after coming here a full decade earlier to do that most American of things – get an education. That day in July, this American citizen was returning home after visiting his mother and family in Nicaragua.

CBP separated him from his husband, then interrogated Chavarria for several hours before releasing him without explanation. Along the way, he was informed that he had no Fourth Amendment right to resist. The primary problem with that argument is, of course, that the Fourth Amendment applies to all American citizens. It clearly states that no one living under the authority of the Constitution must endure unreasonable search and seizure, and that a warrant, based on probable cause, must be obtained by authorities whenever one’s personal effects are to be searched.

To be clear, these protections do not apply to noncitizens seeking to enter the country. Chavarria was utterly and completely covered the moment he finished swearing “so help me God,” on the day of his naturalization. 

Another potential problem with the DHS/CBP argument is a landmark 2014 decision in which the U.S. Supreme Court declared that digital devices like cellphones are covered by the amendment’s original language of “persons, houses, papers, and effects.” But the ruling left the notorious “border exception” intact, which may explain CBP’s inclination to take a constitutional mile with the mere inch the parchment actually gives them. With any luck, Chavarria’s case may breathe renewed life into the space that United States v. Smith clawed back from the border exception in 2023.

Despite such rulings, border agents seem not only unfazed but also emboldened. According to research by the Pacific Legal Foundation, warrantless searches of electronic devices have quadrupled in the decade since the high court’s original 2014 ruling.

When asked about cases like Chavarria’s, CBP demurs. These tactics are “rare” and “highly regulated” according to the agency’s assistant commissioner Hilton Beckham. She also insisted to the Houston Chronicle that such searches are only used to combat serious crimes. “Lawful travelers,” she says, need not fear.

By such logic, Chavarria must have somehow represented a danger to national security. Perhaps New England schoolchildren, gay marriage, and naturalized Nicaraguans are a greater existential threat to the future of the republic than anyone previously realized.

Or it could be good old fashioned political targeting. In April, mere months before his trip, Chavarria refused to sign his state’s request to certify to the U.S. Department of Education that Vermont was not using “illegal DEI practices.” And he did so on the record, noting that his district is the most diverse in the state. The federal request was one that some 19 states, eventually including Vermont, simply refused to comply with. Agree or disagree with that position, it should be a matter of serious concern for people of all political stripes if the government applied a political standard to its warrantless intrusion into an American’s digital devices.

It is perhaps no coincidence, then, that before he even boarded his domestic flight back to Vermont that day, Chavarria received an email. In it, CBP announced that his longtime TSA Global Entry status had been revoked because he suddenly “did not meet program eligibility requirements.”
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So it’s come to this: If you’re traveling abroad, consider using burner phones and leaving your personal and work devices at home.