​PPSA General Counsel Gene Schaerr told the House Judiciary Committee on Thursday morning that Congress faces four critical opportunities to restore Americans’ privacy as Section 702 of the Foreign Intelligence Surveillance Act (FISA) comes up for reauthorization in April.

Schaerr praised the committee for holding a timely oversight hearing as the nation approaches the 250th anniversary of the Declaration of Independence. “But with every passing year,” he said, “it is harder to square our emerging surveillance state with the ‘consent of the governed’ articulated in the Declaration.”

One driver of the surveillance state is FISA Section 702, originally enacted to target foreign threats on foreign soil, but which has instead become a tool the federal government uses to warrantlessly spy on Americans at home, he told the committee.

Schaerr then outlined four reforms Congress can enact in the coming months:

1. Add a probable-cause warrant requirement for “queries” – or searches – of Americans' communications caught up in Section 702 surveillance.

Under current rules, government personnel can conduct “backdoor searches” of Americans’ emails, messages, and other communications collected under Section 702 without court approval. A warrant requirement would close this loophole.

2. Require warrants when federal agencies, from the FBI to the IRS, purchase Americans’ sensitive digital information from data brokers.

This commercially available data includes Americans’ browsing histories, transaction and purchase records, online searches, and other revealing information about their private beliefs and associations. It is far more intimate than anything gleaned from diaries or public records.

3. Narrow the 2024 “make everyone a spy” provision.

Added in the final hours of the last surveillance debate, this law obligates providers of free Wi-Fi to comply with secret NSA demands for private communications. It allows the government to conscript office-space providers – including those who rent space to media organizations, law firms, and political campaigns – into enabling warrantless surveillance of people using their buildings’ internet networks. Even churches and other houses of worship could be targeted.

4. Strengthen the role of cleared civil-liberties experts (amici) in the FISA Courts.

Schaerr urged Congress to require courts to rely on amici for politically sensitive FISA cases by finally enacting the “Lee-Leahy Amendment” that passed the Senate in 2020 with 77 votes.
“Nearly a decade after the Trump campaign and transition were illegally surveilled, this key reform – which would have prevented many of the abuses that occurred in 2016 – is still not in place,” Schaerr said. He also urged the loosening of restrictions that prevent existing amici from accessing key materials and proceedings, needed for meaningful oversight inside the secret courts.

Schaerr concluded by praising the committee for taking the lead on congressional surveillance reform.

“With the bipartisan focus that has come to define this Committee’s work in this important area, I am confident that you can right this ship,” Schaerr said.

Gene Schaerr’s full written testimony can be read here.

​Once upon a time, in Google’s 2004 IPO filing, it aspired to “Don’t Be Evil,” imagining itself a company “that does good things for the world.”

Dateline, November 2025: Various outlets have reported that Google’s app store now includes a version of its Mobile Identify app for Customs and Border Protection. This version is tailored to state and local law enforcement officers who are deputized to work with Immigration and Customs Enforcement (ICE) by using facial recognition to scan people using facial recognition algorithms. If a match is found on federal databases, officials at ICE are notified. And those databases (at least the ones we know of) contain records on more than 270 million people.

Odds are you and your loved ones are in those databases.

The fact that the law enforcement officers who use Mobile Identify are deputized to work alongside ICE is beside the point, as is the fact that ICE has its own, presumably more powerful version of the same app, called Mobile Fortify.

Of far greater concern is that any government agency possesses this ability. It’s easily shared across jurisdictions and Google seems to have no qualms about enabling a tool that could be deployed as a weapon to surveil American citizens at will.

After all, Google’s leaders could’ve just said “no.” But they didn’t, and now an insidious new public-private partnership is afoot. Today, it’s Google and ICE and the issue is immigration enforcement, but don’t expect it to stay that way for long. These kinds of surveillance technologies never stay contained, nor do limitations on who they target. Soon it will be Google and the government – federal, state, county, and local – and the reasons for spying on us could be our religion, political party, ethnicity, affiliation, or – well, you name it.
​
Mobile Identify is just one more reason why Congress must debate how federal agencies are accessing our private information without a warrant. This is something to keep in mind when FISA Section 702, a federal surveillance policy, comes up for reauthorization in April.

​When it was recently revealed that Special Counsel Jack Smith used a grand jury subpoena to secretly access the phone records of eight U.S. Senators and one Member of the House, we were outraged.

We quoted Chief Justice John Roberts in Carpenter v. United States (2018) that “this Court has never held that the Government may subpoena third parties for records in which the subject has a reasonable expectation of privacy.”

We’ve also stood fast by the principle that a right is only a right if it has a remedy, which necessarily includes the ability to sue government officials who violate your constitutional rights.

Concerning the spying on Members of Congress, we wrote: “Senators, like everyone else, deserve a reasonable expectation that their phone records are private.”

Why, then, are so many House Republicans and Democrats up in arms about a last-minute provision stuck into the short-term funding bill that President Trump signed on Wednesday night? That provision, now law, allows individual senators to be awarded up to $500,000 in retroactive lawsuits against the government if their data was sought or obtained without them being notified.

Executive branch surveillance of senators is concerning because it directly impacts the independence of the legislative branch, the functioning of democracy, and thus ultimately the rights of us all. But does this have to mean that the rest of us should be treated as chopped liver?

Think about it:
​

• You cannot sue or in any way impede the dozen federal agencies – ranging from the FBI to the IRS and Department of Homeland Security – for purchasing your most sensitive personal digital data and examining it without a warrant.

 

• You cannot sue if the National Security Agency uses the “Make Everyone a Spy” law to ask your gym, office landlord, or church to hand over records of your communications carried by free Wi-Fi systems.

 

• You cannot sue if a federal prosecutor makes a similar intrusion into your phone logs but keeps it secret with a Non-Disclosure Order (NDO).

Only U.S. senators can sue for being improperly surveilled. And the money they can collect now they can stick right into their bank accounts. The Senate in the last Congress refused to join the House in passing the NDO Fairness Act, which would have restricted the government’s currently unlimited ability to issue gag orders to digital and telecom companies to prevent them from telling you that your records have been accessed.

About this last-minute Senate maneuver, Rep. Chip Roy (R-TX) said, “There’s going to be a lot of people, if they look and understand this, are going to see it as self-serving, self-dealing kind of stuff.”

As we approach next year’s reauthorization of FISA Section 702 – a surveillance authority enacted by Congress for foreign surveillance – Congress will have a golden opportunity to debate a number of reforms that can protect the rights of constituents.
​
Remember us?

The Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR) are anomalies in American law – secret courts. For decades, they issued secret rulings that created novel interpretations of law that the American people were not allowed to know. They remain to this day one-sided courts in which only the government gets to present its case for why it has a valid intelligence reason to spy on people inside the United States.

Little wonder, then, that 99 percent of the government’s requests to spy on “U.S. persons” are granted by FISC. The one provision that allows FISC judges to bring in outside civil liberties experts, or amici, for advice was not used when the court four times permitted the FBI to spy on a presidential campaign and transition. The Department of Justice also failed to inform the court that a rash of applications for surveillance were actually for Members of Congress and staffers who had oversight responsibility for – you guessed it – the Department of Justice.

To bring oversight to this court and to ensure it is not, in fact, a potted plant, Congress in April 2024 passed the Reforming Intelligence and Securing America Act (RISAA). Among RISAA’s provisions was one that allowed select Members of Congress and designated staff to attend and conduct oversight of FISC proceedings.  

Now Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Ranking Member Dick Durbin (D-IL) have fired off a letter accusing the Department of Justice (DOJ) of derailing this process and curbing oversight.

They write that in the waning days of the Biden administration, DOJ “implemented a policy that requires Members of Congress and their staff to agree to a series of arbitrary and inappropriate procedures before being allowed to attend FISC proceedings, which the Trump Administration has maintained.”

Some of DOJ’s policies and procedures include:

• Prohibiting Members of Congress from sharing information with other Members of Congress and members of their staff;

 

• Restricting Members of Congress from requesting information or documentation from participants of FISC proceedings;

 

• Allowing DOJ staff to remove congressional observers, including Members of Congress, from FISC proceedings at any time and at the sole discretion of DOJ;
• Allowing only a limited number of congressional observers to attend FISC proceedings at any one time;

 

• Prohibiting designated staff from attending the same FISC proceeding as their specified Member of Congress; and

 

• Prohibiting notetaking during proceedings, despite congressional staff’s ability to maintain classified notebooks.

These restrictive rules are idiotic. The objections write themselves.

If Members of Congress cannot talk to anyone else about what they learn – including their staff members who have clearance – what is the point of observing the court proceedings?

Why can’t a Member of Congress and his or her cleared staffer attend together?

Why is the Department of Justice allowed to remove Members of Congress? Isn’t removing people from a courtroom up to a judge?

Above all, how can oversight be conducted if the overseers must promise forever after to forget what they heard and never mention it again – to anyone?

This is all part of a familiar pattern: Congress passes a bold reform that reins in an intelligence community practice. Then the intelligence community parses words and creates new standards out of thin air that geld the new attempt at oversight.

The good news is that RISAA and its provision for congressional attendance of FISC hearings passed only because of leverage provided by the April 2024 reauthorization debate about FISA Section 702, an authority that governs surveillance of foreign spies on foreign soil. The next Section 702 reauthorization debate is set to occur next April.

Congress should make it clear that the Department of Justice must pull back these onerous provisions as one of many preconditions for Section 702 reauthorization.
​
The easiest path to reform would be if President Trump – himself a target of illicit surveillance rubber-stamped by FISC – ordered the Department of Justice to roll back these severe limits on congressional oversight.

​Section 702 of the Foreign Intelligence Surveillance Act is an authority enacted by Congress to allow U.S. intelligence agencies to surveil foreign spies and terrorists. But it has been used in the past by the federal government to extract the communications of millions of Americans.

• Among those who had their privacy violated by Section 702 data were 19,000 donors to a congressional campaign. This authority was also used to spy on a state senator, a state judge, a congressman, and a U.S. senator. If judges and Members of Congress can have their rights violated, imagine how much respect the FBI and other government agencies have for your privacy.

Concerned by this abuse of Section 702 authority, Congress put this surveillance power on a short leash – with the next reauthorization in April 2026.
 
Now Sen. Tom Cotton (R-AR) is reportedly promoting the idea of delaying the next reauthorization of this key surveillance authority for another 18 months. No matter how well-intentioned, this is a bad idea that would derail any meaningful debate on surveillance reform in this and the next Congress.  
 
Such a delay would also remove any leverage Congress has to perform meaningful oversight of an intelligence community that resists accountability at almost every turn.
 
The April 2024 Debate Produced Significant Reforms
 
The last reauthorization demonstrates that the leverage of a hard deadline at a relatively calm time in the legislative calendar yields results.

• In the face of furious lobbying by the intelligence community, surveillance reformers on the Hill managed to leverage the April 2024 hard deadline to require the FBI to provide quarterly reports on the number of Americans targeted under Section 702.

 

• Champions of reform proposed a warrant requirement for the extraction of an American’s communications – an amendment that came within one vote of passing the House. Congress also took the Section 702 debate as an opportunity to end “abouts” data collection, a loose practice that prompted the FISA Court to publicly excoriate the National Security Agency for an “institutional lack of candor” about a “very serious Fourth Amendment issue.”

Finally, Congress shortened the window for the next reauthorization of Section 702 – and its attendant surveillance debate – from five years to just two. This ensured that any new issues that emerged would be tracked by congressional overseers.
 
The Issues Ahead
 
With the next Section 702 reauthorization vote set for April 2026, Congress is beginning once again to treat it as an opportunity to discuss broader surveillance policy.
Emerging questions include:
​

• Why, and under what exact authority, did the FBI surveil the communications of eight senators and one House Member in 2021?

 

• A recent Department of Justice report portrays FBI agents as suffering from anxiety and “audit fatigue” in meeting the requirements of Section 702 reforms. If this is the case, couldn’t their anxiety be relieved by sharing responsibility with judges in the form of warrants?

 

• The FBI, IRS, and other federal agency purchase the digital breadcrumbs we leave online when we communicate or conduct an online search. When, if ever, will Congress get another opportunity to require a warrant for the acquisition of Americans’ personal data?

 

• If the Section 702 debate is scrapped next April, when else will Congress get a chance to review the operations of the “make everyone a spy” provision, a last-minute addition in the 2024 debate that obliges almost all businesses to help the government spy on their customers?

If your answer to the above questions is that these issues can simply be taken up after the 18-month extension, think again.
 
The Crowded Calendar of October 2027
 
The beauty of an April reauthorization is that it falls at a fairly calm time in the legislative calendar. An 18-month delay would bump the Section 702 reauthorization vote and the next surveillance debate into the next Congress, to October 2027, amid the press of business around the end of the budgetary cycle. Such debates would have to compete with a likely continuing resolution and a host of contentious spending measures.
 
There would be no time to debate anything about surveillance. It would just be another “clean” reauthorization – which would suit the advocates of the status quo just fine.
Members should remain firm: Congress agreed to an April 2026 reauthorization debate for Section 702.
 
Let’s keep it that way.

“Just because you’re paranoid doesn’t mean they aren’t after you,” says Yossarian, Joseph Heller’s terrified bomber pilot in Catch-22. The same could now be said by eight U.S. Senators and one U.S. House Member – all Republicans – who were secretly spied upon by the FBI during the Biden administration.
​
For five years now, the Project for Privacy and Surveillance Accountability has filed Freedom of Information Act (FOIA) requests demanding records from the FBI and other intelligence agencies about the possible surveillance of Members of Congress. We used every legal avenue – from FOIA requests to lawsuits – to compel the FBI, the Department of Justice, the Office of the Director of National Intelligence (ODNI), the National Security Agency, and the Department of State to disclose documents about the possible surveillance of Members of Congress with oversight responsibility over this intelligence community.

In short, we wanted to know if the FBI and other agencies were “overseeing” their ostensible overseers in Congress.

The government’s only response was the flippant use of the “Glomar response,” a court-created doctrine in which an agency can issue a “neither confirm nor deny” answer. In one instance, a response from ODNI came back within four business days, unprecedented speed for the bureaucracy. The Glomar response was originally created to protect a super-secret CIA project to retrieve a sunken Soviet nuclear submarine. Now it is being used to hide domestic spying.

At the time, Gene Schaerr, PPSA general counsel, responded: “The government doesn’t want to even entertain our question. What do they have to hide?”

Now we know at least part of what the government has to hide.

The FBI in 2023 analyzed the phone records of Sen. Lindsey Graham (R-SC), Sen. Bill Hagerty (R-TN), Sen. Josh Hawley (R-MO), Sen. Dan Sullivan (R-AK), Sen. Tommy Tuberville (R-AL), Sen. Ron Johnson (R-WI), Sen. Cynthia Lummis (R-WY), Sen. Marsha Blackburn (R-TN), and Rep. Mike Kelly (R-PA).

Among them we count three sitting members of the Senate Judiciary Committee, charged with oversight of the FBI, as being targeted by Bureau surveillance.

What was the FBI up to? The FBI document states it “conducted preliminary toll analysis on limited toll records,” meaning it secured and analyzed calls made by these Members in relation to their votes on whether to certify the 2020 presidential election results. The FBI’s analyses were based on metadata – who called whom and when. As research from Stanford University has shown, such seemingly innocuous records can yield “surprisingly sensitive personal information” about the likely contents of those calls.

That is one reason why Sen. Chuck Grassley, Chairman of the Senate Judiciary Committee, called this a “weaponization by federal law enforcement under Biden” that was “arguably worse than Watergate.”

We predict this is just the tip of the iceberg. The ease with which the FBI surveilled prominent Members of Congress hints at the underlying reasons for which PPSA’s queries have been batted away so consistently by the intelligence community. We believe that time will reveal that there is more – much more – evidence of the intelligence community accessing the private communications of Congress.

Next year Congress will hold a debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. It should be clear to all Members that the FBI can’t be trusted. We need reforms across the board, from ending the abuse of Section 702 as a source of warrantless domestic surveillance, to ending government data purchases.

​Last week saw two federal court rulings concerning President Trump’s ability to fire members of independent boards.
 
One came from the U.S. Supreme Court, which ruled on Thursday that President Trump has the right to fire members of two independent boards, specifically the National Labor Relations Board and the Merit Systems Protection Board. The day before, however, a federal judge ruled that President Trump unlawfully removed two Democrats from the Privacy and Civil Liberties Oversight Board (PCLOB).
 
The Trump administration will likely conclude that this lower court ruling stands an excellent chance of being overturned appeal. Even if that is so, however, President Trump would help himself and advance his policies if he declined to do so. The president should instead embrace this ruling as an unexpected opportunity to reconsider the decision to fire the two Democrats. Doing so would strengthen the president’s surveillance reform agenda.
 
Here's why: PCLOB was enacted by Congress to act as a watchdog to ensure that federal counterterrorism efforts do not violate the civil liberties of Americans. As a bipartisan body, it plays a unique role in checking the intelligence community’s power. Its members aren’t figureheads, or partisan actors. They are heavyweight experts in surveillance and privacy policies, providing essential oversight.
 
One of the reinstated members, Travis LeBlanc, has been vocal in consistently challenging overreach in federal surveillance of Americans. He has criticized the FBI’s warrantless searches under Section 702 of FISA and pushed for stronger privacy protections. His civil liberties stance broadly supports and advances the critique of the intelligence community and its interference in American political life held by President Trump, Director of National Intelligence Tulsi Gabbard, and FBI Director Kash Patel.
 
These two Democrats were notably at odds with the Biden administration, which never saw an intelligence program or activity it didn’t like. Keeping LeBlanc and the other Democrat, Edward Felten, onboard avoids the risk of replacing them with less reform-minded Democrats. It would empower oversight voices who share the administration’s goal of curbing abuse within the intelligence community.
 
PPSA urges President Trump to take this opportunity to let these members continue their work. Doing so would support, rather than undermine, his expressed commitment to restoring trust and accountability in intelligence oversight.

​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.

​Congratulations FBI Director Kash Patel on your confirmation by the U.S. Senate.
 
In your nomination hearing, you brought a refreshing new tone that was notably lacking in the patronizing and reticent responses of your predecessor. You spoke of the more than 200,000 improper queries of American citizens under FISA Section 702 as “255,000 reasons why the American people don’t trust” the FBI.
 
Your willingness to discuss the FBI’s intrusion into Americans’ privacy prompted Sen. Mike Lee (R-UT) to exclaim, “Music to my ears. You are the very first FBI director or FBI director nominee who when asked about this hasn’t said, ‘Oh, don’t worry about it. We’ll handle it okay. We’ve got good people on the inside. We would never breach the trust of the American people.’ Do you know what? They were lying …”
 
Can you please allow your new tone to set a new direction at the FBI?
 
The FBI has routinely used Section 702 as a catch-all for investigating domestic crimes and snooping into the privacy of 19,000 donors to a congressional campaign, the private data of a U.S. Senator and a U.S. House Member, as well as a state judge and a local political party.
 
Now that you are heading for FBI headquarters at 935 Pennsylvania, N.W., we urge you to:
​

• Reveal the annual numbers of U.S. person queries (along with the numbers of any actual probable cause warrants) under Section 702 and tell us how many were for domestic crimes not related to spying and terrorism.

 

• Disclose the amount of dollars the FBI spends on purchasing the digital data of Americans, the data brokers this data is purchased from, and the investigative justification for these data purchases by category.

 

• Pledge to restrict the broader definition of “electronic communications service provider” to providers of a segment widely believed to be companies that store data in the cloud.

 

• Continue, with Attorney General Pam Bondi, a commitment made by the former attorney general in a letter to Senate leaders that the expanded “electronic communications service provider” authority will only be used to close a technical gap to fill a critical intelligence need.

 

• Refrain from extending this secret-surveillance-on-demand for any kind of business that offers free Wi-Fi to its customers.

 

• Declassify the nature of this “technical” gap? (Everyone already knows it is about cloud computing – so can Congress please be allowed to openly discuss this?)

 

• Support Sen. Mark Warner’s pledge that the narrowing of this authority must be included in legislation.

​
We welcome your fresh perspective and critical outlook at the FBI. Waiting for you in your office will be a few tons of baggage left over from prior directors who played word games with Congress and stretched every tiny gap into a loophole, and every loophole into a canyon.
 
If you can change that tradition, you will be setting up the FBI for great things in the future.

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

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

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

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

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

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

 

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

 

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

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

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

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

 

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

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

Breitbart recently broke a story that a few recalcitrant House Members are holding up a promised fix to what many referred to as the “Make Everyone a Spy” law.
 
The fix regards an amendment to the reauthorization of FISA Section 702, passed in April, in which pro-surveillance advocates added a requirement that U.S. business owners who offer customers the use of their Wi-Fi and routing equipment be covered as “electronic communication service providers” under the law. This means that any business – your neighborhood fitness center, an office complex that houses journalists, political campaigns, or even a church or other house of worship, as well as a host of other establishments – would face the same requirement as large telecoms to turn over the communications of their customers, no warrant required.
 
This was not meant to happen. As the Senate voted in April to reauthorize FISA Section 702, bipartisan furor erupted over this provision, including leading conservatives in both chambers. Sen. Mark Warner (D-VA), Chairman of the Senate Intelligence Committee, promised his colleagues that the amendment that included this expansive authority would be narrowed to include only one category of business. That category is classified but is widely believed to be data centers that provide cloud computing and storage.
 
With this promise in hand, the Senate voted down an amendment to remove the flawed provision, and immediately passed the reauthorization of Section 702 – all in the belief that the expansive new spy power would soon be curbed.
 
Sen. Warner was true to his word, inserting language into the Senate intelligence bill that narrows the scope of the new measure. Now, in a baffling turn of events, it is the House that is refusing to include the fix in its version of the intelligence bill.
 
Why are some House Members insisting on keeping an authority that allows spying on churchgoers, shoppers, and office workers? Bob Goodlatte, the former chairman of the House Judiciary Committee and PPSA senior policy advisor, told Breitbart News: 
 
“This measure passed because of assurances that this insanely broad authority would be narrowed. The promise of a fix was made and accepted in good faith, but that promise is being trashed by advocates for greater surveillance of our citizens. Unless Congress reverses course, Americans’ data that runs through the Wi-Fi and servers of millions of small businesses, ranging from fitness centers to department stores, small office complexes, as well as churches and other houses of worship, will be fair game for warrantless review. This would truly transform our country into a thorough surveillance state. I can’t imagine the next Congress and new Administration would welcome that.”
 
Surely, giving the deep state free rein to spy on Americans is not in keeping with the philosophy of the incoming Trump administration, the new Republican majority in Congress, or most Democrats.
 
Contact your House Member and say:
 
“Please don’t let this legislative year end without narrowing the Electronic Communication Service Provider standard. Congress must keep its promise to fix the Make Everyone a Spy Law.”

​The election may have shaken Washington, D.C., like a snow globe in the grip of a paint mixer, but the current Congress still has important business for the lame duck session. For anyone who cares about privacy in this age of surveillance, issue one has to be whether or not Congress will retain the promised fix to what so many call the “make everyone a spy” provision in the National Defense Authorization Act (NDAA).
 
This story goes back to April, when the House Permanent Select Committee on Intelligence slipped into the reauthorization of FISA Section 702 (which authorizes foreign intelligence) a measure to allow the government to secretly enlist almost every kind of U.S. business to spy on their customers. In response to the outcry, carveouts were made that exempted coffee shops, hotels, and a few other business categories. But most businesses – ranging from gyms to dentists’ offices, to commercial landlords with tenants that could include political campaigns or journalists – are required to turn over their customers’ communications that run on ordinary Wi-Fi systems.
 
It is widely believed that this legislation was aimed at cloud computing facilities, which were not previously covered by the relevant law. When the Senate took up reauthorization of Section 702, Intelligence Committee Chairman Mark Warner (D-VA) admitted to his colleagues that the new measure was overbroad, and that he would craft new legislation to fix it. Sen. Warner kept his word and crafted legislation to narrow the provision. Although the nature of this fix is classified, it is widely believed to limit this new surveillance power to cloud computing facilities.
 
The House Intelligence Committee, however, did not adopt that fix. We hear that behind-the-scenes negotiations are taking place, but we cannot report exactly who might be blocking it or why. Suffice it to say that it is far from clear that Congress will ultimately adopt Sen. Warner’s fix.
 
PPSA calls on Speaker Mike Johnson and Senate Minority Leader Mitch McConnell to make it clear that the NDAA will include a provision to narrow the scope of this extreme provision. We must not give the FBI and other government agencies warrantless access to practically all communications that run through any kind of equipment operated by almost any kind of business.
 
Allowing the current law to remain unfixed and unreformed would be a terrible punch in the gut to the American people and the new Congress. The 119th Congress has many surveillance debates scheduled, including one over the reauthorization of Section 702 itself in 2026 – which passed the House with the breaking of a tie vote. It would be a mistake to saddle the new Republican majority and the incoming Trump administration with a broken promise.

​Sen. Rick Scott – former two-term governor of Florida, now re-elected to the Senate by more than 10 points over his most recent challenger – has consistently voted for surveillance reform. Sen. Scott has been a vocal champion of reforming FISA Section 702 – enacted by Congress to authorize surveillance of foreign threats on foreign soil, but often used to collect the communications of Americans. Sen. Scott called FBI Director Christopher Wray on the carpet to tell him that he’s squandering the credibility of a great agency by playing games with Americans’ privacy.
 
Rick Scott has also been a strong supporter of a probable cause warrant requirement before the FBI and other intelligence agencies can review Americans’ personal data and communications. Such principled stands on surveillance reform explain why we gave the Florida senator an “A” rating in our PPSA Scorecard.
 
From Tallahassee to Capitol Hill, Sen. Scott has made winning tough races look easy. We encourage more Members of Congress in both parties to recognize what Sen. Scott demonstrates, that surveillance reform is good politics.

​The incoming Trump administration has an unparalleled opportunity to achieve historic surveillance reform. Donald Trump made campaign pledges to:
 

• Make every Inspector General’s office independent and physically separated from the departments they oversee. This would enhance the objectivity of those who oversee surveillance operations by giving them a bit of distance.

 

• Work to ban federal bureaucrats from taking jobs at the companies they deal with and that they regulate. This measure would help ensure that when surveillance requests are made by government to the private sector, agendas remain clean and separate.

 

• Reform FISA courts. This measure could bring in qualified amici, seasoned experts with high-level security clearances, to provide the court with – to paraphrase Hemingway – built-in, shock-proof, BS detectors.

 

• Ask Congress to establish an independent auditing system to continually monitor our intelligence agencies to ensure they are not spying on our citizens or running disinformation campaigns against the American people. This leads to a sweet spot shared by surveillance reformers of all stripes – the need to impose a warrant requirement on federal agencies, ranging from the FBI to the IRS, that buy the private and intimate data of Americans from third-party data brokers.

 
The Trump agenda on surveillance reform presages monumental and much needed reforms, from Section 702 reform to passage of the Fourth Amendment Is Not For Sale Act by both houses of Congress. The stars are aligning with the incoming administration. The 119th Congress must make the most of this historic opportunity.

​Vice presidential candidate J.D. Vance (R-OH) told Joe Rogan over the weekend that backdoor access to U.S. telecoms likely allowed the Chinese to hack American broadband networks, compromising the data and privacy of millions of Americans and businesses.
 
“The way that they hacked into our phones is they used the backdoor telecom infrastructure that had been developed in the wake of the Patriot Act,” Sen. Vance told Rogan on his podcast last weekend. That law gave U.S. law enforcement and intelligence agencies access to the data and operations of telecoms that manage the backbone of the internet.
 
Chris Jaikaran, a specialist in cybersecurity policy, added in a recently released Congressional Research Service report about a cyberattack from a group known as Salt Typhoon:
 
“Public reporting suggests that the hackers may have targeted the systems used to provide court-approved access to communication systems used for investigations by law enforcement and intelligence agencies. PRC actors may have sought access to these systems and companies to gain access to presidential candidate communications. With that access, they could potentially retrieve unencrypted communication (e.g., voice calls and text messages).”
 
Thus, the Chinese were able to use algorithms developed for U.S. law enforcement and intelligence agencies to see to any U.S. national security order and presumably any government extraction of the intercepted communications of Americans and foreign targets under FISA Section 702. China doesn’t need a double agent in the style of Kim Philby. Our own Patriot Act mandates that we make it easier for hostile regimes to find the keys to all of our digital kingdoms – including the private conversations of Vice President Kamala Harris and former President Donald Trump.
 
As alarming as that is, it is hard to fully appreciate the dangers of such a penetration. The Chinese have chosen not to use their presence deep in U.S. systems to “go kinetic” by sabotaging our electrical grid and other primary systems. The possible consequences of such deep hacking are highlighted in a joint U.S.-Israel advisory that details the actions against Israel that were enabled when an Iranian group, ASA, wormed its way into foreign hosting providers.
 
ASA hackers allowed the manipulation of a dynamic, digital display in Paris for the 2024 Summer Olympics to denounce Israel and the participation of Israeli athletes on the eve of the Games. ASA infiltrated surveillance cameras in Israel and Gaza, searching for weak spots in Israeli defenses. Worst of all, the hack enabled Hamas to contact the families of Israeli hostages in order to “cause additional psychological effects and inflict further trauma.”
 
The lesson is that when our own government orders companies to develop backdoors into Americans’ communications, those doors can be swung open by malevolent state actors as well. Sen. Vance’s comments indicate that there is a growing awareness of the dangers of government surveillance – an insight that we hope increases Congressional support for surveillance reform when FISA Section 702 comes up for renewal in 2026.

​The recent approval of the House Intelligence Committee’s annual intelligence policy bill sets up a critical moment for the ongoing debate over surveillance powers, particularly the controversial FISA Section 702. While the bill does not include a provision to narrow the definition of "electronic communication service providers" (ECSP), this issue will soon come to a head in the House-Senate conference.
 
Rep. Jim Himes (D-CT) signaled his acceptance of Senate Intelligence Chair Mark Warner’s "technical fix," which would narrow the scope of the ECSP definition. Himes said the change “would be totally fine with me,” and that “I always believed that the language was overbroad in the initial amendment…”
 
This change would prevent ordinary businesses—like coffee shops or small offices—from being forced to assist in government surveillance. While Himes expressed he would be "totally fine" with Warner’s proposal, the issue has yet to be fully debated or incorporated into House legislation. We’ve seen efforts at reform falter before, and the final outcome will be determined behind closed doors in the House-Senate conference, where transparency is sorely lacking.
 
As we’ve previously noted, broadening the ECSP definition without clear limitations would create a “Make Everyone a Spy” law, enlisting small businesses into the surveillance apparatus.
 
Moreover, the administration’s reassurance that the law will only be applied to specific providers, based on a classified FISA court decision, is insufficient. History shows that such promises often erode over time, allowing the intelligence community to expand its surveillance reach through legal loopholes. John Wiegmann, the new top lawyer for the Office of the Director of National Intelligence, also supported Warner’s. But as with everything, we want to see the changes in writing in the bill.
 
The closed-room conference between the House and Senate is where these decisions will play out, but the lack of public scrutiny makes it a fraught process. Given past betrayals on surveillance reform, we have ample reason for anxiety. Privacy advocates must remain vigilant and press for real reforms that ensure no further expansion of surveillance powers. The House and Senate need to guarantee that any changes made truly limit the scope of ECSPs and protect Americans from warrantless data collection. PPSA will be monitoring this situation closely as it unfolds.

​An important analysis from Real Clear Investigations probes the extent to which censorship abroad threatens the First Amendment here at home. 
 
Writer Ben Weingarten asks whether foreign demands that domestic media companies operating abroad comply with those nations’ often far more censorial legal requirements will lead in turn to more censorship here at home. The preponderance of the evidence suggests bad news for fans of the First Amendment.
 
Weingarten points specifically to the European Union’s Digital Services Act, which imposes content moderation standards that far exceed what would be considered constitutional in the United States. For example, companies doing business in the EU must combat “illegal content online,” which includes the disfavored rhetoric like “illegal hate speech.”
 
Writes Weingarten:
 
“Platforms also must take ‘risk-based action,’ including undergoing independent audits to combat ‘disinformation or election manipulation’ – with the expectation those measures should be taken in consultation with ‘independent experts and civil society organisations.’ The Commission says these measures are aimed at mitigating ‘systemic issues such as … hoaxes and manipulation during pandemics, harms to vulnerable groups and other emerging societal harms’ driven by ‘harmful’ but not illegal content.”
 
What’s more, investigations pursuant to the DSA can result in fines of up to 6% of annual global revenue, a potential outcome likely to give companies like X and Facebook pause when considering whether to comply with the invasive oversight of European bureaucrats and NGOs serving as arbiters of the appropriate.
 
Then there’s the question of whether social media companies that agree to the EU’s demands are likely to run parallel services – for example, a DSA compliant version of X and another that is consistent with the requirements of the First Amendment.
 
Elon Musk seemed willing to abandon Brazil after that country banned X for failing to de-platform the account of former president Jair Bolsonaro. (Though Musk’s company is now very much back in business there.) But the EU is a much bigger market with a lot more monetizable users.
 
As Weingarten documents, the punishment of media companies abroad for speech that is well within the bounds of the First Amendment is a growing trend – not just in the EU but also in countries like the UK and Australia. And Weingarten reserves no small amount of criticism for the Biden Administration’s silence – and even capitulation – in the face of such foreign censorship.
 
Bills like the No Censors on our Shores Act, which could “punish foreign individuals and entities that promote or engage in the censorship of American speech,” offer one potential solution to foreign censorship creep. So do articles like Weingarten’s, which provide a much-needed diagnosis of our speech-related ailings and failings.

​The Cato Institute is challenging the FBI and Department of Justice in court to demand transparency regarding the government’s warrantless surveillance practices under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The lawsuit, brought under the Freedom of Information Act (FOIA), seeks the release of records on how well the FBI is complying with restrictions placed on the use of this controversial program.
 
Section 702 allows U.S. agencies to monitor communications between foreigners abroad, but it has also been used to capture the communications of Americans, leading to allegations of overreach and privacy violations. Despite bipartisan efforts in Congress to reform or even dismantle Section 702, the public has been kept in the dark about whether any meaningful changes have occurred.
 
Cato has been stonewalled in its efforts to obtain information that could reveal the extent of this surveillance. As Cato Senior Fellow Patrick Eddington pointed out: “When the FBI stonewalls public records requests about a massive surveillance program that gobbles up billions of communications yearly — including yours and mine — it’s violating the law… A law its agents and managers are sworn to uphold.” This case is about more than just documents; it’s about shedding light on potential abuses of power and ensuring that the law protects ordinary citizens from unwarranted government surveillance.
 
The lawsuit raises an essential question about the balance between national security and civil liberties. Without transparency, it's impossible to know whether surveillance programs are being misused or if they adequately protect Americans’ privacy. Cato’s case is a crucial step toward uncovering whether the FBI is following the legal limits placed on Section 702 or if it continues to overreach under the cover of secrecy.
 
If successful, this case could force the government to reveal whether it is truly adhering to the law in its use of FISA's broad surveillance powers. At stake is the privacy of millions of Americans whose communications could be intercepted without their knowledge or consent.
 
This case deserves attention from everyone who values privacy and accountability. PPSA is proud to support Cato’s efforts to push for a future where government overreach is kept in check and individual liberties are safeguarded. We look forward to further developments in this case.

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

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

​The phrase “national security” harks back to the George Washington administration, but it wasn’t until the National Security Act of 1947 that the term was codified into law. This new law created the National Security Council, the Central Intelligence Agency, and much of the apparatus of what we today call the intelligence community. But the term itself – “national security” – was never defined.
 
What is national security? More importantly, what isn’t national security?
 
Daniel Drezner, a Fletcher School of Law and Diplomacy professor, writes in Foreign Affairs that it was the Bush-era “war on terror” that put the expansion of the national security agenda into overdrive. Since then, he writes, the “national security bucket has grown into a trough.”
 
The term has become a convenient catch-all for politicians to show elevated concern about the issues of the day. Drezner writes: “From climate change to ransomware to personal protective equipment to critical minerals to artificial intelligence, everything is national security now.” He adds to this list the Heritage Foundation’s Project 2025’s designation of big tech as a national security threat, and the 2020 National Security Strategy document, which says the same for “global food insecurity.” We would add to that the call by politicians in both parties to treat fentanyl as a matter of national security.
 
While some of these issues are clearly relevant to national security, Drezner’s concern is the strategic fuzziness that comes about when everything is defined as a national security priority. He criticizes Washington’s tendency to “ratchet up” new issues like fentanyl distribution, without any old issues being removed to keep priorities few and urgent.
 
For our part, PPSA has a related concern – the expansion of the national security agenda has a nasty side effect on Americans’ privacy. When a threat is identified as a matter of national security, it also becomes a justification for the warrantless surveillance of Americans.
 
It is one thing for the intelligence community to use, for example, FISA Section 702 authority for the purpose for which Congress enacted it – the surveillance of foreign threats on foreign soil. For example, if fentanyl is a national security issue, then it is appropriate to surveil the Chinese labs that manufacture the drug and the Mexican cartels that smuggle it. But Section 702 can also be used to warrantlessly inspect the communications of Americans for a crime as a matter of national security. Evidence might also be warrantlessly extracted from the vast database of American communications, online searches, and location histories that federal agencies purchase from data brokers.
 
So the surveillance state can now dig up evidence against Americans for prosecution in drug crimes, without these American defendants ever knowing how this evidence was developed – surely a fact relevant to their defense.
 
As the concept of national security becomes fuzzier, so too do the boundaries of what “crimes” can be targeted by the government with warrantless surveillance. “Trafficking” in critical minerals? Climate change violations? Repeating alleged foreign “disinformation”?
 
When Americans give intelligence and law enforcement agents a probable cause reason to investigate them, a warrant is appropriate. But the ever-expanding national security agenda presents a flexible pretext for the intelligence community to find ever more reason to set aside the Constitution and spy on Americans without a warrant.
 
Drezner writes that “if everything is defined as national security, nothing is a national security priority.” True. And when everything is national security, everyone is subject to warrantless surveillance.