​The Senate confirmation of Tulsi Gabbard as DNI puts the former Congresswoman from Hawaii in the cockpit of the U.S. intelligence community. Director Gabbard will have to perceive and define evolving threats in the most hostile global environment in almost a lifetime. She will also have no lack of challenges in coordinating the mission of 18 federal agencies and refining their conclusions as actionable intelligence for the president.
 
PPSA, along with our civil liberties colleagues, hope that as Director Gabbard plunges into the myriad challenges of her new job, she will also stand true to her heritage as a champion of the U.S. Constitution. As a Congresswoman, Tulsi Gabbard stood fast to the conviction that we can have both national security and respect for the Bill of Rights. We urge Director Gabbard in her new role to demonstrate the viability of this principle. We call on her:
 

• To close the backdoor search loophole by enforcing a warrant requirement whenever the FBI singles out American citizens for a query of their personal data, collected pursuant to Section 702.

 

• To also require warrants when the government inspects Americans’ personal, digital data purchased by federal agencies from third-party data brokers.

 

• To release the full number of queries of Section 702 databases made by the FBI and other agencies to inspect the personal communications of U.S. persons, so we can understand how this authority is being used.

 

• To extend the promise made by the previous administration to restrict the authorities of the electronic communications service providers to a technical fix (widely believed to apply to cloud computing), rather than use this authority in its most expansive form, forcing practically any kind of American business to spy on their customers.

 

• To deepen Director Gabbard’s predecessor’s effort, the Policy Framework for Commercially Available Information, to guide federal intelligence agencies into developing procedures and strong guidelines in the uses of purchased data.

 
In each of these efforts, we hope Director Gabbard will demonstrate that we can protect Americans from threats from abroad while also protecting them from the prospect of an emerging surveillance state.
 
“In the military, I learned that ‘leadership’ means raising your hand and volunteering for the tough, important assignments,” Gabbard said. We are fortunate that Gabbard has volunteered for this particularly tough assignment. We urge her to find ways to extend her legacy as a defender of the American homeland and as a defender of our freedoms at home.

The confirmation hearings of Kash Patel as FBI director and Tulsi Gabbard as Director of National Intelligence should give civil libertarians across the ideological spectrum hope for greater sensitivity about Americans’ privacy by the intelligence community’s new leaders.
 
Patel’s hearing in the Senate Judiciary Committee did start out on a discordant note. Sen. John Cornyn (D-TX) asked Patel about whether probable cause warrants are needed for the Foreign Intelligence Surveillance Act Section 702 “queries” of U.S. persons. Patel described such warrants as impractical. “It’s almost impossible to make that function and serve the national, no-fail mission,” the nominee said.
 
But Patel also acknowledged the Section 702 authority – enacted by Congress to enable the surveillance of foreign targets on foreign soil – has been widely abused. As we’ve reported, the FBI has used Section 702 to spy on 19,000 donors to a congressional campaign, the private data of sitting Members of the U.S. Senate and House, as well as to provide evidence for ordinary domestic cases.
 
“The concern that the American people have with FISA 702 is not about the real-time collection of communications regarding foreign targets,” Sen. Lee (R-UT) told Patel, describing the government’s warrantless accessing of Americans’ communications. “Under current law, they [FBI] routinely access that without getting a warrant … They’re not supposed to use this for lighter, transient reasons. They are supposed to have a perfectly good reason, and yet we’ve found that on hundreds of thousands of occasions, they have accessed the private communications of Americans searching for those individual Americans by name, by number, by email address, whatever it is, without a warrant, or anything tantamount to it. On occasion, they’ve even been used for overtly nefarious reasons. One agent decided to look in on his father because he suspected his father might be having an extramarital affair. On another occasion, an agent looked at people who were thinking about renting an apartment from him.”
Patel added that the FISA court has reported that “255,000” illegal, improper queries of American citizens had occurred. He said “that’s 255,000 reasons why the American people don’t trust it. And that is why we must work together, Congress and me, to restore that trust, and protect that mission.”
 
“Music to my ears,” Sen. Lee said. “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 … You will not lie. That is why I wholeheartedly support you.”
 
In the Senate Select Committee on Intelligence, Sen. Ron Wyden (D-OR) put a series of brisk questions to Gabbard and mostly was pleased by her answers. Gabbard affirmed the written responses she had given the committee, holding that when Americans’ communications are surveilled, warrants “generally” should be required – with emergency circumstances. On the expansion of the definition of electronic communications service providers – which obligates virtually all businesses that offer Wi-Fi to their customers to secretly turn over their communications to the NSA – Gabbard deferred. She agreed to continue a Biden Administration Department of Justice policy that restricts government access to the notes and sources of journalists.
 
While these two nominees’ answers are encouraging, we will have to wait and see if their actions follow their words. In particular, Kash Patel’s framing of Section 702 surveillance as always a “no-fail” goal, if it encompasses domestic crime, elevates constant urgency above procedural safeguards and the Fourth Amendment.
 
One thing is clear – both an FBI Director Kash Patel and a Director of National Intelligence Director Tulsi Gabbard would be far more sensitive than their predecessors to the concerns of civil libertarians about Americans’ privacy and open to hearing from outside of the intelligence community echo chamber.

​A letter released earlier this week from dozens of former high-ranking intelligence officials, including former National Security Advisor Robert C. O’Brien and acting Director of National Intelligence (DNI) Richard Grennell, made the case for Senate confirmation of Tulsi Gabbard to be the next DNI. They wrote:
 
“Her service as DNI will begin undoing the gross politicization that has come to characterize intelligence bureaucracies, which has been to the great detriment of the freedom and security of the United States and its citizens.
 
“Lt. Col. Gabbard’s experience more than qualifies her for this important position. A military officer with more than 20 years of honorable service, she undertook multiple combat deployments and risked her life in defense of the United States. In Congress, she served on numerous national security committees and was an outspoken champion for America’s warriors and for our cherished constitutional freedoms. In both these roles, she experienced first-hand how intelligence, when used as intended, provides critical support to America’s military and political leaders.”
 
They concluded that Tulsi Gabbard has “the integrity, and moral courage, to restore objectivity and professionalism to the nation’s intelligence agencies.”

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

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

​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.

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

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

​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 intelligence community’s disregard for solemnly made pledges reminds us of the hit song by the ‘80s new wave band Naked Eyes: “You made me promises promises/
Knowing I'd believe …”
 
Forgive the Boomer reference, but the failure of the intelligence community to live up to its promises is also a golden oldie.
 
For example, in 2017, Dan Coats was asked in a Congressional hearing if he would, if confirmed as Director of National Intelligence, provide public estimates of the number of people inside the United States with communications “incidentally” collected by National Security Agency surveillance. Coats said he would “do everything I can” to work with the head of the NSA “to get you that number.” That pledge was followed up by NSA Deputy Director Richard Ledgett to provide an estimate by the end of that year.
 
This would have been important information for the reauthorization of FISA Section 702 in 2018, as well as congressional debate and reauthorization of this same authority this year. Section 702 allows the NSA to scour global networks in search of the communications of foreign spies and terrorists. Given the interconnected nature of global communications, surveillance technology cannot help but also collect the private communications of Americans at home, potentially violating the Fourth Amendment. Having a ballpark estimate of how many Americans have had their privacy rights implicated by federal surveillance would be very useful guidance for congressional oversight of the intelligence agencies.
 
Yet, Director Coats and the NSA backtracked. Their estimates never came. Their excuse was that separating Americans from this global trawl would be too impractical, somewhat like counting all the krill picked up in a large fishing net. But this argument, to strain a metaphor, doesn’t hold water. The watchdog Privacy and Civil Liberties Board made it clear in 2023 that in order to comply with the Constitution’s Fourth Amendment, as well as directives from the Foreign Intelligence Surveillance Court (FISC), the NSA already filters out domestic communications in its programs. In 2022, Princeton researchers published a methodology for a rough estimate of how many people in the United States have their communications caught up under programs authorized by Section 702. Under such partial proxies, Congress could at least have some idea of how many Americans have their communications captured by their government.
 
Beyond ballpark numbers, Congress needs to know how government agencies – the FBI in particular – might be using Americans’ personal information gleaned from Section 702 programs for warrantless domestic surveillance. Despite solemn promises by the champions of the intelligence community that this never happens, the FISC Court revealed that such surveillance has been used by the FBI in ordinary domestic cases – evidence against American citizens that is never revealed in court.
 
Frustrated by the government’s many broken promises, PPSA joined with Restore The Fourth and 22 other civil liberties organizations across the ideological spectrum – ranging from the American Civil Liberties Union to Americans for Prosperity – to send a letter to the directors of national intelligence and NSA. We demand access to numbers that the government clearly has and pledged to Congress to provide.
 
Director of National Intelligence Avril Haines and NSA Director Gen. Timothy Haugh would be well advised not to toss this one into the round file. The reauthorization of Section 702 passed by one tie-breaking vote in the House this year. If the government once again fails to keep its promise, it will not augur well for the next reauthorization of Section 702 on the legislative calendar for 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.

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

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

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

 

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

 

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

 

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

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

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

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

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

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

 

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

 

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

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

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

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

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

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

​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.

​U.S. intelligence agencies justify tens of thousands of warrantless backdoor searches of Americans’ communications by claiming an exception to the Fourth Amendment for “defensive” purposes.
 
In testimony to Congress, FBI Director Christopher Wray has said that such defensive searches are absolutely necessary to protect Americans in real time who may be potential victims of foreign intelligence agents or cyberattacks. On this basis, the FBI and other agencies every year conduct tens of thousands of warrantless “backdoor” searches of Americans’ communications with data extracted from programs authorized by FISA Section 702 – even though this program was enacted by Congress not to spy on Americans, but to authorize U.S. agencies to surveil foreign spies and terrorists located abroad.
 
Noah Chauvin, Assistant Professor of Law at Widener University School of Law, in a 53-page paper neatly removes every leg of the government’s argument. He begins with the simple observation that there is no “defensive” exception in the Fourth Amendment. Indeed, an analogous claimed exception for “community caretaking” was rejected by the U.S. Supreme Court in the 2021 decision on Caniglia v. Strom, holding that the government could not enter a home without a warrant based on the simple, non-exigent claim that the police needed to check on the homeowner’s well-being. Whether for community caretaking or for surveillance, the “we are doing this for your own good” excuse does not override the Fourth Amendment.
 
In surveillance, the lack of constitutional validity makes the government’s position “a political argument, not a legal one.” Chauvin adds: “It would be perverse to strip crime victims of the Fourth Amendment’s privacy protections – a person should not lose rights because they have been violated.”
 
It is apparently on the basis of such a “defensive search,” for example, that the FBI violated the Fourth Amendment rights of Rep. Darin LaHood (R-Ill). In that case, the FBI was concerned that Rep. LaHood was being unknowingly targeted by a foreign power. If the FBI can secretly violate the rights of a prominent and respected Member of Congress, imagine how blithely it violates your rights.
 
While making these sweeping claims of violating the Fourth Amendment to protect Americans, “the government has provided almost no public information about how these defensive backdoor searches work.” Chauvin adds: “The government has claimed it uses backdoor searches to identify victims of cyberattacks and foreign influence campaigns, but has not explained how it does so, saying only that backdoor searches have ‘contributed to’ or ‘played an important role in’ intelligence services.”
 
Also unexplained is how the government identifies potential American victims, or why it searches for victims instead of potential perpetrators. Nor does it reveal its success rate at identifying potential victims and how that compares to traditional methods of investigation. Finally, Chauvin asks: “Would obtaining permission before querying a victim compromise the investigation?”
 
It is a matter of settled law that any American can give informed consent to waive his or her Fourth Amendment rights. “It seems particularly likely,” Chauvin writes, “that would-be victims will grant the government permission to perform defensive backdoor searches.” One can easily imagine a long list of companies – from hospitals to cloud providers – that would grant such blanket permission.
 
So why not just do that?
 
Finally, Chauvin appeals to Congress not just to remedy this backdoor search loophole for Section 702. He proposes closing this loophole for Americans’ digital data that U.S. intelligence and law enforcement agencies purchase from third-party data brokers, as well as for Executive Order 12333, a non-statutory surveillance authority claimed by the executive branch.
 
At the very least, Congress should demand answers to Chauvin’s questions about how defensive searches are used and how they work. He concludes, “the government’s policy preferences should never override Americans’ constitutional rights.”

​We are about 160 days away from the next presidential inaugural.
 
If Donald Trump returns to the presidency, he will bring with him an innate skepticism of federal surveillance. This is because his campaign and transition (and by extension himself) were the targets of four surveillance orders issued by the secret FISA Court in 2016 and 2017 that were based on a concocted intelligence report and forged document created by an FBI lawyer (later convicted of a felony).
 
But Trump may not have the surveillance skepticism lane to himself. Despite Vice President Kamala Harris having served in a very pro-surveillance administration, her background also reflects skepticism of federal surveillance. This is especially true of FISA Section 702, an authority enacted by Congress to surveil foreign threats located abroad but has come to be also used as a domestic spying authority.
 
As a senator in 2017, Harris co-sponsored an amendment with her fellow Californian and leading Democrat, the late Sen. Dianne Feinstein, that would have required federal agencies to obtain a probable cause warrant before the FISA Court to review the contents of Americans’ emails. Did service in the Biden Administration, which opposed warrants, change Vice President Harris’ thinking, or would she revert to her Senate position?
 
We cannot be sure what a President Harris or a President Trump would do in a political and geopolitical environment that is much different from the landscape of 2017. But one useful metric for the next administration would be to know how many “U.S. persons” – or people located inside the United States – have had their communications collected under FISA Section 702.
 
Jonathan Mayer, a professor at Princeton University, served as Harris staffer in the Senate. Last year, Politico’s John Sakellariadis reported that Mayer and his research assistant Anunay Kulshrestha used cutting edge cryptographic techniques to estimate how much U.S. person information is collected by under Section 702.
 
Mayer’s math produces only a partial data set. It also doesn’t count data on people inside the United States who communicate or cooperate with foreign spies or terrorists, which would make them legitimate targets of Section 702. But if fully fleshed out, this form of analysis could give a ballpark idea of how extensively Section 702 databases uses spy techniques that result in gathering massive amounts of private information about thousands, if not millions, of average Americans.
 
Of course, the intelligence community could simply tell us. But the intelligence community, in perhaps a too-clever-by-half response, says that separating out who is and isn’t an American in the database would be exactly the kind of privacy intrusion that groups like ours protest. PPSA holds that if such a count were quarantined only for the explicit purpose of making such a count, it would harm no one’s privacy and serve the purpose of illuminating the nature of Section 702 for policymakers when it comes up for reauthorization again in the spring of 2026.
 
“One of the best ways to understand the risk of incidental collection to U.S. persons is to have a sense of data contained through the authority,” says Travis LeBlanc, a Privacy and Civil Liberties Oversight Board member.
 
There are, however, simpler ways to get at the real number. Congress could demand it by the end of this session. Failing that, a President Trump or a President Harris could simply release that number by executive order.
 
When a surveillance authority hoovers up the private data of Americans, at the very least we have a right to know how many Americans have had their privacy compromised.