​The U.S. Supreme Court’s landmark decision in Chatrie v. United States settled one important question while raising another that Congress can no longer ignore.

If the government needs a warrant to compel Google to disclose Americans’ location records, why should it be able to sidestep that requirement by buying the same records from a data broker?

Chatrie’s Principles

In a 6-3 opinion, the Court held that Americans retain a reasonable expectation of privacy in detailed cellphone location records, even when those records are held by a third party such as Google. Police therefore conduct a Fourth Amendment search when they compel disclosure of that information through a geofence warrant. 

In writing the majority opinion, Justice Elena Kagan recognized a simple truth about modern life: carrying a smartphone inevitably generates an extraordinarily revealing record of where we go, whom we visit, who our romantic partners are, which churches we attend, what political rallies we join, and countless other intimate details. Americans do not surrender their constitutional privacy merely because technology companies necessarily store that information. 

But if that is true, an obvious question follows: Why allow the federal government to simply purchase the very same information from a commercial data broker?

The Data Broker Loophole

Today, at least a dozen federal agencies have acknowledged buying commercially available personal data. These include the FBI, the Drug Enforcement Administration, the IRS, the Department of Homeland Security, the Department of Defense, and elements of the intelligence community. Instead of obtaining a warrant approved by a judge, these agencies often obtain access simply by writing a check.

This practice has become known as the “data broker loophole,” a gaping privacy vulnerability that turns the Fourth Amendment inside out.

Suppose police could not constitutionally enter your home without a warrant, but could legally pay your neighbor to climb through the window and photograph every room. Few Americans would believe the Constitution permits such an end-run around judicial oversight. Yet that is effectively what has developed in the digital age.

Commercial data brokers aggregate astonishing quantities of personal information collected by smartphone apps, advertisers, financial transactions, connected vehicles, and countless online services. These databases can map a person’s movements, habits, religious observance, medical concerns, political associations, and relationships with extraordinary precision. Agencies can often acquire such data without ever demonstrating probable cause to a court. 

Now, Chatrie pokes holes through the government’s thin rationale by holding that highly revealing location histories remain constitutionally protected even when maintained by private companies.

If the Constitution bars the government from compelling disclosure without a warrant, Congress should not permit agencies to obtain the same information merely because a private intermediary has placed it on the market.

The bipartisan Fourth Amendment Is Not for Sale Act would close this loophole by requiring government agencies to obtain a warrant before acquiring sensitive commercially available data. The core provisions of that legislation should be incorporated into Section 702 of the Foreign Intelligence Surveillance Act when it comes up for reauthorization.

The Supreme Court now recognizes that Americans possess a reasonable expectation of privacy in the digital trails their smartphones inevitably create.
​
Congress should finish the job by closing the data-broker loophole when it reauthorizes Section 702.

The government has yet to respond to a Freedom of Information Act (FOIA) request filed in 2024 by the Cato Institute seeking records on abuses of Section 702 of the Foreign Intelligence Surveillance Act. Court records reveal, however, that the FBI is withholding 39,650 pages responsive to that FOIA request.

This should be a matter of vital interest to Congress.

Section 702 is a surveillance authority that allows the government to spy on foreign threats on foreign soil, but has been used widely in recent years to warrantlessly spy on millions of Americans whose communications are “incidentally” caught up in the National Security Agency’s global trawl.

So you would think that almost 40,000 pages on possible FBI violations of Section 702 would be at the forefront of the debate over whether to add guardrails and reforms as Section 702 faces reauthorization.

But Congress has been supine while the FBI promises to release only a meager 128 pages in August. The Privacy and Civil Liberties Oversight Board, which could add clarity to the FBI’s actions, has also been sidelined by the administration.

Patrick Eddington, a Cato fellow, wrote:

“Congress is being asked to extend, without a warrant requirement, a surveillance program whose compliance record cannot be independently verified, whose oversight bodies have been deliberately disabled, and whose custodians have shown a personal willingness to turn its tools on the press.”

The latter is a matter of particular concern. The previous year saw a rise in “sensitive warrantless searches,” or queries that involve political and religious figures or organizations, as well as journalists.
​
When will Congress get curious and demand the information needed to inform the Section 702 debate?

​Every Fourth of July, Americans happily celebrate the Declaration of Independence as the birthday of our nation. As we grill our feasts in our backyards, however, we should also remember that the Declaration was not a mere flight of rhetoric. It was the culmination of years of growing outrage over arbitrary government power.
 
The first great spark came in 1761, when Boston lawyer James Otis Jr. challenged the British Crown’s use of Writs of Assistance – “general warrants” that allowed customs officials to search homes, businesses, and ships without individualized suspicion.
 
John Adams, then a young lawyer watching Otis argue, never forgot what he heard. He would later say, "Then and there the child Independence was born."
 
The Declaration of Independence would later thus condemn King George III for subjecting Americans to “pretended legislation” and arbitrary rule. The Founders understood that liberty cannot survive when government officials possess unchecked authority to search first and justify later. The Fourth Amendment – requiring a probable cause warrant before government can inspect our persons, houses, papers, and effects – would not be ratified until 1791. But the principles behind the Fourth Amendment’s protections were already growing deep roots long before independence.
 
Today’s government no longer carries paper writs signed by the Crown. And police and the FBI almost always respect the need for warrants to enter homes. But modern technology has created powerful new versions of general warrants. These include:
 

• Warrantless searches of Americans’ communications collected by federal intelligence agencies from global communications under FISA Section 702.

 

• Government purchases of Americans' sensitive location, financial, and internet-browsing data from commercial data brokers, sidestepping the warrant process altogether.

 

• Geofence warrants that compel technology companies to identify everyone whose devices happened to be near a location, treating entire crowds as potential suspects.

 

• Mass collection of license plate reader data, allowing governments to reconstruct the movements of millions of innocent drivers.

 

• The “Make Everyone a Spy” provision that obligates most businesses and houses of worship that provide Wi-Fi and internet connections to secretly spy on their customers and congregants for the National Security Agency.

 
We are thus back to Otis’s age of general warrants, only this time instead of Redcoats ransacking our homes, the government uses AI-enabled algorithms probing our smartphones, data in the cloud, and digital records.
 
As Congress prepares to again debate federal surveillance policy, Members would do well to remember James Madison’s admonition: “In framing a government … you must first enable the government to control the governed; and in the next place oblige it to control itself.”
 
Will Congress ensure that our government controls itself by placing guardrails on rampant warrantless federal surveillance of the American people?
 
The Fourth of July should remind us why independence was declared in the first place. The generation that pledged its lives, fortunes, and sacred honor did so in part because it refused to live under a government armed with unchecked surveillance authority.
 
The best way to honor that legacy is not merely to celebrate liberty once a year, but to preserve it every day by ensuring that 21st-century surveillance powers remain subject to the same constitutional restraints the Founders demanded from the very beginning.

​Emily Kopp of the Daily Caller writes that “FISA Section 702 targets foreign nationals, but it also hoovers up the communications of Americans when they’re on the other end of the text thread or email chain. The FBI can peer into its classified mass surveillance database for dirt on Americans without ever asking a judge for a warrant.”

Kopp reports:

“Some Members of Congress and the corporate media frequently cite the intelligence community’s claim that Section 702 informs 50-70% of items in the President’s Daily Brief, while never specifying how much of this intelligence requires warrantless spying on Americans.”

The article quotes PPSA General Counsel Gene Schaerr:

“What the ‘intel bros’ constantly do is conflate the use of Section 702 to surveil foreigners with the use of Section 702 to surveil Americans. They’re constantly playing this game of flimflam. Nobody disagrees that Section 702 is really important. The question is why do you need to surveil Americans? They never even try to make the case.”

Kopp’s reporting raises a point that should be top of mind when Congress once again considers reauthorizing Section 702.

“A recent court filing revealed the FBI holds 39,650 records that may shed light on the frequency of abuse. But the Department of Justice (DOJ) won’t release even a tiny fraction until August – by which time it’s likely the Bureau’s spooks will have already secured an extension of the program.

“The scale of the FBI’s snooping is unknown. But it’s clear that any American can fall into the FBI’s dragnet, even the president, Schaerr points out.”

Kopp also reports that Members of Congress have read a March legal opinion from the FISC, revealing routine abuses of Americans’ constitutional rights. The ruling remains classified, but press reports indicate that it sharply criticized a filter on the mass surveillance database that underreports searches of Americans’ information.
​
Read Kopp’s Daily Caller piece here.

Ample Time for Debate

The decision by the Trump administration to effectively suspend its push for the reauthorization of FISA Section 702 is a tacit admission of what PPSA has been saying all along: there is no credible national security reason to rush this process.
 
While the statute has expired, Section 702 intelligence collection will continue under orders issued by the secret Foreign Intelligence Surveillance Court (FISC) until March 2027. In the meantime, there have been zero reports of problems with intelligence collection – which, to be sure, would be trumpeted by the intelligence community if that were the case.
 
We don’t know when the current legislative muddle on the Hill will clear. We do know that when it does, it will be important to get it right in the next round.
 
Background

This issue deserves debate and deep attention by Congress. Section 702 is the national security law enacted by Congress to enable the surveillance of foreigners on foreign soil, but has been used in recent years to warrantlessly snoop on the international communications of Americans millions of times. Despite procedural reforms enacted into law two years ago, these changes have done little to address the risks of Section 702.
 
Consider this: Earlier this year, the FISC publicly acknowledged the existence of continuing major compliance problems with Section 702 directly related to Americans’ constitutional rights. The court objected to how the FBI, CIA, and NSA use filtering tools to process our messages.
 
While the administration appeals the court’s finding, Congress and the American people are not permitted to know the exact nature of these compliance issues. With the luxury of time, shouldn’t Congress insist on a public accounting of ongoing problems with Section 702 and Americans’ privacy?
 
What to Ask for When Section 702 Reemerges

It is important to keep all this in mind when the current entanglement clears and Section 702 comes up for a vote again. House leadership tried and failed three times to force a vote on Section 702 reauthorization, breaking with tradition by preventing debate on meaningful amendments.
 
The same approach also failed once in the Senate. Leadership in both houses repeatedly tried to push the next reauthorization of FISA Section 702 between three and five years from now – a key reason for the failure of this strategy. One key principle Congress should uphold:
 

• Reject any reauthorization for Section 702 that is longer than two years. AI is supercharging surveillance at breakneck speed. Given the ongoing reports of Section 702 violations – and the escalating ability of AI to pull data from disparate sources to create dossiers on every American – Congress will need to keep oversight prompt.

 
Whenever the path opens to focus again on reauthorization, Members of Congress must insist that this time they be allowed to vote on key amendments:

• Add a warrant requirement for Section 702 searches of Americans’ communications.
  
  
• Apply a warrant requirement to the federal government’s purchase and review of Americans’ sensitive personal data – closing the data-broker loophole.
  
  
• Narrow the definition of “electronic communication service provider” to exclude countless small businesses – and even houses of worship – from being forced by the NSA to assist in spying on customers and congregants. 
  
  
• Stop political abuses in secret FISA Court cases by (a) requiring non-partisan amici to advocate for the American public in sensitive cases and (b) enhancing penalties for government misbehavior.
  ​
  
• End the obstruction of key Members’ access to the FISA court.

 
Until now, the terms of the debate have been dictated to majorities in the House and Senate. Those dictating those terms have proved unable to enforce them and are now tangled up in a confusing web of competing priorities.
 
It is time for a bipartisan majority to step in and impose clarity. When Section 702 moves forward, it must be with debate over meaningful guardrails to protect the American people from rampant government surveillance.

​Faith communities answer to a higher authority than the state. They preserve independent institutions, foster private associations, and teach moral truths that governments do not control. For that reason, churches, synagogues, mosques, temples, and religious ministries have often found themselves in the crosshairs of governments eager to monitor dissent.

That is why Congress must repeal one of the most dangerous provisions added to FISA Section 702 in 2024 – the expanded definition of an Electronic Communications Service Provider (ECSP), commonly known as the “Make Everyone a Spy” provision.

The ECSP expansion dramatically broadens the range of people and organizations that can be compelled to assist government surveillance, including most businesses that provide free Wi-Fi to customers and tenants. While the debate often focuses on privacy, the provision also poses a direct threat to religious liberty.
​

• Consider the impact of this law on a church-based crisis pregnancy center. Such ministries provide counseling, emotional support, and practical assistance to women facing difficult decisions. Their effectiveness depends on trust and confidentiality. Yet under the ECSP expansion, organizations that merely provide communications infrastructure or access to facilities could potentially find themselves entangled in government surveillance demands while being prohibited from disclosing them.

The chilling effect would be immediate. Individuals seeking spiritual guidance or personal counseling should never have to wonder whether their conversations could become part of a surveillance operation.

History teaches us that such fears are not hypothetical.

• During the 1960s civil rights movement, Black churches served as the organizational heart of efforts to secure equal rights under the law. Meetings, fundraising efforts, strategy sessions, and community organizing frequently took place within houses of worship. Government surveillance of Dr. Martin Luther King Jr. and other civil rights leaders remains one of the most disgraceful chapters in federal law enforcement history.

Nor is religious surveillance a mere relic of the past.

• In FBI v. Fazaga, Muslim plaintiffs challenged a surveillance operation in which an FBI informant infiltrated Southern California mosques, secretly recording worshippers and collecting information about their religious practices and associations. Innocent believers found themselves under scrutiny not because of criminal conduct, but because of where they worshipped.

 

• More recently, documents released during the Biden administration revealed that FBI personnel discussed developing sources within communities of so-called “radical traditionalist Catholics.” Subsequent disclosures showed that the effort extended beyond a single field office.

And the danger is not confined to one political party. Just as the Biden administration’s treatment of traditionalist Catholics raised alarms, future conflicts between any administration and religious leaders could create similar temptations. Recent tensions between President Trump and Pope Leo XIV illustrate how quickly political disagreements can spill into disputes involving religious institutions.

This is precisely why constitutional protections exist. The First Amendment protects not only the right to worship, but also the right to associate, counsel, organize, and speak freely within religious communities. Those freedoms depend on privacy and trust.

Havel warned that governments seeking greater control cannot tolerate institutions that point to truths beyond official power. Religious communities do exactly that. They remind citizens that there are limits to what government may command and limits to what it may know.

The ECSP expansion pushes in the opposite direction. It creates new opportunities for surveillance to penetrate institutions that have historically served as centers of conscience, dissent, and moral witness.
​
Congress should enact the ECSP fix and restore the narrow definition of compelled assistance. No church, mosque, synagogue, pregnancy center, religious school, or ministry should be transformed into an unwilling arm of the surveillance state.

On Thursday morning, the House voted against Leadership’s short-term clean reauthorization of FISA Section 702. Leadership once again stiff-armed any opportunity to propose amendments with badly needed reforms to protect Americans’ privacy from domestic spying.

This strategy marks a significant break with past Section 702 debates. In 2024, for example, House Members were given the chance to vote on a warrant requirement for Section 702 U.S. person searches, which nearly passed in a 212-212 tie vote. This year, what is clearly now a House majority in favor of enacting reforms and placing guardrails on domestic surveillance has been sidelined, multiple times now.

The result, predictably, is what we saw this morning. After multiple attempts, it should be clear to all that stiff-arming meaningful debate and necessary reforms is a failed strategy.

Having demonstrated what doesn’t work, the House can now take a new path. There is no need to rush it. Members in both the House and Senate should know that when the statute behind Section 702 expires on Friday, intelligence collection will still continue. The surveillance orders of the Foreign Intelligence Surveillance Court are in effect – and will remain in effect – until March 2027.

That is how long Congress has to reauthorize Section 702 without in any way jeopardizing national security.

Looking ahead, House Members must be able to vote on a warrant requirement for Section 702, warrants for the purchased data of Americans, and the removal of the so-called “Make Everyone a Spy” provision that obligates most businesses and even houses of worship to assist the NSA in spying on their tenants, customers, and congregants.

These are not trivial issues for Members or their constituents.

•  A 2023 bipartisan poll showed that 76 percent of Americans support warrant requirements before the government can access Americans’ international communications. Some 80 percent support warrant requirements before the government can access location records, internet search histories, and other highly personal digital records.

The time has come for Leadership to respect the majority – the majority in the House and the majority of the American people.
​
“I am hopeful that the House is now in a place where it will move forward in a constructive debate that will lead to long-needed reforms,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and a PPSA Senior Policy Advisor. “It is time to allow for such a full debate and votes on reform amendments.”

Many news organizations are proving to be better at stenography than they are at journalism.
 
They are repeating – uncritically – bombshell accusations from Sen. Tom Cotton (R-AR) and Sen. Chuck Grassley (R-IA) in a letter to Secretary of State and National Security Advisor Marco Rubio claiming that drastic steps will be needed to offset the loss of intelligence gathering on threats to the United States if Congress allows Section 702 of the Foreign Intelligence Surveillance Act to expire on Friday.
 
“We write with regret to ask that you plan for a potential significant gap in foreign intelligence collection,” the chairmen of the Senate Intelligence and Judiciary Committees wrote on Saturday.
 
They should know better.
 
PPSA, other civil liberties organizations, and our champions on Capitol Hill have time and again corrected this canard. When Congress set the next deadline for the reauthorization of Section 702 on June 12, all it meant is that the statute authorizing this surveillance authority will expire. But the actual collection of foreign intelligence will continue.
 
Charlie Savage of The New York Times is one journalist who gets this right. He reported in April:
​
“The Section 702 program would not immediately shut down if the statute expired. It operates under certifications that the Foreign Intelligence Surveillance Court issues each year authorizing the government to direct communications companies to participate. The key provision says these directives ‘shall continue in effect’ until their expiration dates.”
 
Section 702, which was enacted by Congress to enable the surveillance on foreign threats on foreign soil, will thus continue under the court’s orders until March 2027. That is how long Congress has to debate Section 702 before the collection of foreign intelligence would actually be affected.
 
This debate can continue without endangering national security. And the reforms that are being advanced – warrant requirements for the collection and inspection of Americans’ data, as required by the Fourth Amendment – can be passed by Congress without endangering national security either.
 
We can both protect the American people and uphold our constitutional rights. Don’t let anyone tell you otherwise.

President Trump’s selection of Bill Pulte to serve as acting director of national intelligence has already stymied the hard push by Senate leadership to force through the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Most on the Hill have so far focused on the oddity of the appointment of a housing official with no military or intelligence experience to lead the Office of the Director of National Intelligence.

“By any objective assessment – in terms of experience, expertise, background – this appointment makes no sense,” said Sen. Angus King (D-ME). Sen. John Cornyn (R-TX) chimed in: “I see no evidence of any qualifications for the job.”

Since this is an acting appointment, however, Pulte’s post will not require Senate confirmation. He can serve as acting Director of National Intelligence until Jan. 26, 2027 – although President Trump now says that this is only a “temporary” appointment. Pulte will, at least for now, also continue to serve as director of the Federal Housing Finance Agency (FHFA), as well as chairman of Fannie Mae and Freddie Mac.

But Pulte’s appointment is sure to focus Congress on the possible uses and abuses of the vast amount of warrantlessly collected data authorized by Section 702. The FBI has abused Section 702 millions of times in the last five years, warrantlessly accessing the communications of Americans through backdoor searches.

To complicate matters, as Pulte moves into his new office, he will still face an inquiry by the Government Accountability Office into whether he misused federal authority and resources to publicly accuse prominent Democrats of mortgage fraud.

Whatever you make of all this, it is not helping the cause of surveillance hawks in the House and Senate who are still trying to ram through the reauthorization of Section 702 without allowing any debate on significant amendments.

The ultimate head-scratcher here is why President Trump would allow his allies to push for a reauthorization of a long-abused surveillance authority when he himself was targeted by the misuse of a related FISA authority in 2016 and 2017.
​
PPSA continues to urge President Trump to focus on building a legacy that would reform the surveillance state while bolstering the powers needed to keep America safe. A good place to start would be for House and Senate leaders to allow a debate and votes on amendments that would place guardrails on Section 702.

​A move by Senate leadership to reauthorize the Section 702 surveillance authority of the Foreign Intelligence Surveillance Act without major reforms failed last night in a 52-47 vote.

Seven Republicans joined almost all Democrats: Sens. Josh Hawley (R-MO), John Kennedy (R-LA), Mike Lee (UT), Rand Paul (R-KY), Eric Schmitt (MO), Rick Scott (R-FL), and Tommy Tuberville (R-AL).

“FISA 702 reauthorization failed because it did not contain a warrant requirement for spying on Americans,” Sen. Lee posted on X. “Come back with a warrant requirement, and we’ll pass the bill.”

Much of the momentum behind the “nay” votes by Democrats was a protest against the appointment of the administration’s housing chief, Bill Pulte, to serve as director of national intelligence. But many senators on both sides of the aisle have also listened to PPSA and other civil liberties groups about the need to add warrant requirements before the government can help itself to Americans’ communications and data. Section 702 has been used in recent years to give the FBI warrantless access to the data and communications of Americans in contact with foreigners millions of times.

The measure would also have extended the next reauthorization by three years. At a time when artificial intelligence is enhancing the power of surveillance at breakneck speed, many senators were sympathetic to PPSA’s contention that three years would be too long before the next reauthorization – Congress’s only regular opportunity for oversight of the intelligence community’s surveillance of the American people.

Expect surveillance hawks to now try to alarm Members of Congress by claiming that national security will be endangered when Section 702 expires on June 12.

Any claims about the lapse of a vital national security authority would be nothing but fear-mongering. Only Section 702’s authorizing statute, Title VII, will lapse on June 12. The actual collection of intelligence will continue through March 2027 under orders already issued by the Foreign Intelligence Surveillance Court.

“Attempts to impose reauthorization without warrants have now failed twice in the House and once in the Senate,” says Bob Goodlatte, former Chairman of the House Judiciary Committee and PPSA Senior Policy Advisor. “It is time for leaders to end these efforts to rush through measures that majorities oppose and begin to consider reasonable reforms that will protect both Americans’ constitutional rights and national security.”

As the Senate regroups and the House turns once again to the issue, PPSA and our civil liberties coalition support the following reform measures:
​

• No more than two years for the next Section 702 reauthorization, giving Congress time to assess the evolution of government surveillance powered by AI.

 

• Pass a warrant requirement for Section 702 searches of Americans’ communications. We cannot continue to allow a foreign intelligence surveillance tool to be turned on our own citizens.

 

• Add a warrant requirement to the federal government’s purchase and review of Americans’ sensitive personal data – curbing the data-broker loophole and ending the routine warrantless inspection of Americans’ highly personal geolocation, internet search history, and internet communications data.

 

• Curb the definition of “electronic communication service provider” under FISA to protect countless small businesses and houses of worship from being forced by the NSA to assist in spying on their customers and congregants.

 

• Prevent political abuses in FISA Title I cases by including the formerly titled “Lee-Leahy Amendment” in the 702 reauthorization. This measure, which passed the Senate in 2020 with 77 votes, would mandate the inclusion of a qualified third-party amicus with expertise in the Fourth Amendment, and holding a high-level clearance, to advocate for the American public in secret FISA court proceedings that implicate American political leaders and other sensitive matters.

PPSA will continue to press Members of Congress to pass these reform measures and we will keep you informed of major developments.

At this writing, rumors are circulating around the halls of Capitol Hill that surveillance hawks in the Senate are preparing to press for a reauthorization of FISA Section 702 later this week.

Their version, it is said, would include no warrant requirements for the collection and inspection of the communications of Americans, despite the fact that Section 702 is a legal authority meant to authorize the surveillance of foreign threats on foreign soil – not to sweep up the communications of vast numbers of Americans.

If the rumors are correct, the Senate scheme would also avoid any effort to close one of the most dangerous and pernicious surveillance practices. We refer to the routine purchase of Americans’ most intimate information – including our location histories, online searches, communications metadata, and other datapoints that reveal our financial, romantic, health, political, and religious concerns and personal associations.

It seems that some in the Senate are also planning to exclude any measure incorporating provisions from the bipartisan Fourth Amendment Is Not for Sale Act. These provisions would require the dozen federal agencies – ranging from the FBI to the IRS – to obtain probable cause warrants before purchasing our most personal information from shady data brokers.

The good news is that the Senate will need 60 votes to move any such bill forward, with a number of surveillance reform champions ready to block it.

Perhaps an even better piece of news is that a House majority comprised of Members of both parties is rebelling against attempts by leadership to stiff-arm amendments and try to corral them into votes with tight deadlines.

Leaders in both parties are stepping forward in the House. Witness the recent passage of an amendment led by Rep. Adriano Espaillat (D-NY) in the House Appropriations Committee to close the data broker loophole.

Or witness this “Don’t Spy on Me” declaration by Members of the House Freedom Caucus.

With different words and regional accents, they all ask why an authority designed for surveilling foreigners is being turned against their constituents. Their rebellion is not remarkable. What’s remarkable is that so many House and Senate leaders are fighting tooth and nail to protect the government’s claimed right to spy on Americans – while some House and Senate leaders appear willing to bend the rules to force Congress to condone it.

The House Freedom Caucus’s anti-surveillance flag is a spinoff of the 1775 “DON’T TREAD ON ME” Gadsden flag depicting a timber rattlesnake coiled and ready to strike. This is just one sign that House and Senate Members have had enough of the current departure from regular order designed to cut off all debate and meaningful amendments.

Reformers would do well to remember the words of Christopher Gadsden, creator of the flag bearing his name, who said: “Stand tall, even when the world tries to bring you down.”

​Tulsi Gabbard is set to depart her post as Director of National Intelligence on June 30 to care for her ailing husband. Before she leaves, Director Gabbard has a golden opportunity to advance government transparency by releasing a secret opinion of the Foreign Intelligence Surveillance Court (FISC) detailing what Sen. Ron Wyden (D-OR) has described as “violations of Americans’ constitutional rights” involving Section 702 of the Foreign Intelligence Surveillance Act (FISA).
 
Inexplicably, the Justice Department notified Congress in April that it is appealing the release of this crucial opinion describing how the FBI and other agencies violated laws or procedures governing Section 702. Congress enacted this authority to facilitate the surveillance of foreign threats abroad, but in recent years the FBI has also used it to gain warrantless access to the communications of millions of Americans.
 
On May 1, Sen. Wyden secured commitments from the bipartisan leaders of the Senate Intelligence Committee – Sen. Tom Cotton (R-AR) and Sen. Mark Warner (D-VA) – to declassify this important opinion detailing how the FBI and other agencies violated laws and procedures regulating Section 702.
 
Yet the Trump administration continues to block the release of this information in the midst of an intense surveillance debate, as Congress has struggled for weeks to reauthorize Section 702. Releasing the opinion would help lawmakers determine whether the FBI is still conducting warrantless “backdoor” searches of Americans’ communications despite the guardrails Congress enacted during the 2024 reauthorization.
 
What might kinds of violations may have occurred?
 
Liza Goitein of the Brennan Center for Justice reports that the FBI used an “advanced filtering function” to “search for U.S. persons’ communications using terms associated with those persons.” Although such searches plainly met the statutory definition of a query, “the FBI did not treat the searches as queries and therefore did not track or count them.”
 
The existence of a querying tool that allegedly operated outside statutory constraints raises broader concerns. If one such tool escaped oversight, could similar tools exist at other agencies – or elsewhere within the FBI – that have not yet been detected by internal auditors or disclosed to Congress?
 
Charlie Savage of The New York Times has reported that a source told him a digital filtering system designed to help analysts refine query results focused on foreigners was also generating results that the secret court deemed warrantless “queries” of Americans’ communications.
 
Beyond confirming these reports, the administration should answer questions, starting with:
 

• How often did these improper queries occur?

 

• How many Americans were affected?

 

• Did the FBI or any other federal agency review the contents of communications obtained through these searches?

 

• Has any American faced legal action based on evidence derived from such warrantless queries?

 
The Justice Department’s resistance is particularly troubling because it defies the public requests of both the chairman and ranking member of the Senate Intelligence Committee to release this information. At the same time, the administration and House Speaker Mike Johnson have resisted votes on reform amendments while pushing to reauthorize Section 702 without meaningful additional safeguards.
 
Withholding this information from Congress and the American people during an active reauthorization debate displays a troubling disregard for the transparency and oversight a democracy requires.
 
During her confirmation hearing, Tulsi Gabbard pledged to restore trust in the intelligence community through greater transparency and accountability. This is her opportunity to fulfill that promise. Doing so may displease some within the intelligence establishment, but it would demonstrate a commitment to the principles she pledged to uphold – and ensure that her tenure concludes with an act of meaningful transparency.

​Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted to enable the surveillance of foreign threats on foreign soil. By 2021, however, when The Wall Street Journal reported that this supposedly “foreign” surveillance authority had been used to search Americans’ communications as many as 3.4 million times, it was clear that Section 702 had evolved into a tool that could permit domestic spying operations.
 
That is why Congress, in 2024, insisted on a two-year reauthorization window rather than a longer extension. The goal was to allow for closer oversight of how intelligence agencies use – and sometimes misuse – this authority. In previous reauthorization debates, House leadership permitted Members to vote on reform amendments. Speaker Mike Johnson himself did so in 2024.
 
When Congress returns next week, however, Speaker Johnson reportedly intends to continue relying on restrictive procedural rules rather than an open amendment process.
 
After losing two floor votes, Speaker Johnson appears poised to make a third attempt to reauthorize Section 702 without allowing Members to propose, debate, and vote on reform amendments. Consider the many ways in which the handling of this legislation departs from normal practice:
 

• Despite strong bipartisan support for reforms – including a warrant requirement before the government searches Americans’ communications and restrictions on government purchases of Americans’ personal digital data – House leadership has used special procedural rules to tightly control which amendments may receive floor consideration. Leadership reportedly has even considered, and may still be considering, reauthorizing Section 702 under suspension of the rules, a procedure that requires a two-thirds vote while sharply limiting debate and opportunities for amendments.

 

• The House Rules Committee, apparently at the direction of leadership, has repeatedly rejected reform amendments, including proposals requiring warrants for searches of Americans’ data. These actions represent significant departures from regular order, under which Members are generally free to offer germane amendments to major legislation.

 

• House leadership continues to pursue either a “clean” reauthorization or proposals advertised as reforms that largely restate existing law. Such measures leave untouched the central concern raised by reform advocates: warrantless government access to Americans’ communications.

 

• While sidelining surveillance reforms, House leadership has attached a ban on a Federal Reserve central bank digital currency (CBDC) to the reauthorization package. PPSA has endorsed legislation to prohibit a CBDC. But a CBDC ban does nothing to reform Section 702. Moreover, Senate Majority Leader John Thune has reportedly declared the provision “dead on arrival” in the Senate. Including this moribund proposal in the package seems disingenuous.

 

• House leadership has repeatedly scheduled votes near expiration deadlines, leaving reform advocates little time to organize support. Debate has at times stretched late into the night, literally exhausting debate and creating pressure to act quickly rather than deliberate carefully.

 

• Instead of resolving substantive disagreements, leadership has relied on a series of short-term extensions – first 10 days, then 45 days. This “rolling cliff” strategy creates artificial urgency and reduces opportunities for thoughtful analysis and debate.

 
All of this is occurring while the Trump administration continues to withhold a Foreign Intelligence Surveillance Court opinion that reportedly details ongoing compliance failures and violations of laws and procedures intended to protect Americans’ constitutional rights.
 
We have to ask: Why is Speaker Johnson carrying such a heavy burden for the intelligence community? And why is President Trump – who was himself the target of surveillance abuse under a related FISA authority – allowing intelligence agencies to demand reauthorization without any meaningful reforms?
 
Before Congress reconvenes, President Trump and Speaker Johnson should consider a more constructive path. This would be one that permits open debate, allows votes on bipartisan reforms, and restores public confidence that surveillance authorities will be exercised within constitutional limits, while preserving the government’s ability counter foreign threats.
 
Now that would be a legacy.

​Would you like to know what you have at stake in the current congressional debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA)?
 
Do you want to understand exactly how federal agencies sidestep the U.S. Constitution to gain ready access to your communications, search histories, and data about your finances, health, romantic life, and location histories – including who you meet with, what you believe, where you go?
 
Are you looking for the plain truth about rampant government surveillance beneath Washington’s sea of acronyms?
 
Visit our new Surveillance Coalition website – fisareform.org.
 
On this site you will find a clear description of the issue, what is at stake, and the precise reforms needed.
 
Under the “Section 702 Basics” tab you will find an “Explainer” produced by the Brennan Center for Justice at New York University School of Law that answers these questions:

• What Is Section 702?

 

• Whose communications does the government collect under Section 702

 

• How does the government use Section 702 as a domestic spying tool?

 

• Are backdoor searches constitutional?

 

• How have intelligence agencies abused backdoor searches?

 

• Did Congress fix the problems with Section 702 when it last reauthorized the law?

 

• How do the current administration’s actions impact concerns about backdoor searches?

 

• What can be done to protect Americans from warrantless government spying?

 

• Would a warrant requirement harm national security?

 

• What happens if Congress doesn’t reauthorize Section 702 by the deadline?

 
Under the “Resources” tab you can read incisive op-eds by leading Members of Congress and our Coalition leaders, including PPSA’s own Bob Goodlatte, in publications ranging from The New York Times and The Washington Post to The Hill – as well as our Coalition letters to Congress and the Trump administration that spell out key reforms needed to protect Americans’ privacy.
 
Finally, under the “National Security Protected” tab you can find a rebuttal to those who say that delaying the reauthorization of the FISA Section 702 surveillance authority – or placing any guardrails on government surveillance of the American people – would be dangerous to our safety.
 
We show step by step how these scaremongering claims are false – how our reforms are carefully designed to protect national security – and why the protection of the homeland can go hand-in-hand with respect for the Constitution and Americans’ privacy.
 
At the entrance of the Central Intelligence Agency headquarters is an engraved inscription from the Bible: “And ye shall know the truth and the truth shall set you free.”
 
We believe that this is good advice for the American people as well.

​Lawmakers should consider that one of the worst aspects of modern surveillance is not just its sweeping intelligence collection, or its avoidance of Fourth Amendment probable cause warrants, but also the insidious nature of its secrecy. Every year tens of thousands of Americans have their communications records scrutinized by the government, without ever learning that their private records have been searched.
 
The bipartisan NDO Fairness Act – which passed the House unanimously in 2023 – offers a practical and overdue reform. The legislation would place meaningful limits on the government’s use of non-disclosure orders (NDOs), the gag orders often served alongside warrants compelling technology companies and cloud providers to secretly hand over customer data. These orders can prevent Americans from knowing that the government has accessed their emails, files, messages, or other digital records.
 
Former House Judiciary Committee Chairman Bob Goodlatte, now PPSA’s Senior Policy Advisor, and Richard Salgado, who teaches surveillance law at Stanford and Harvard Law Schools, write in The Washington Post:
 
“A physical search is cumbersome and expensive; it requires logistics, timing and staffing. And if a homeowner challenges it, the investigation could slow down.”
 
That is just as the Founders wanted it to be. By constitutional design, searches should not be easy. But James Madison could not have imagined the Department of Justice’s Legal Process Generator, which churns out demands and boilerplate NDOs.
 
“Once a warrant is approved, the government sends it to the service provider with the gag order and waits for the zip file to arrive.”
 
Presto, change-o, you’ve been searched. And that search will remain secret, likely forever.
 
As Goodlatte and Salgado explain, notice is essential to preserving Americans’ rights. When the government secretly searches records stored with third parties and then bars providers from informing customers, citizens are deprived of any realistic opportunity to challenge improper surveillance. In an age when Americans store much of their lives in the cloud, secrecy orders increasingly wreck the constitutional balance between citizens and the state.
 
As Congress weighs whether to renew the FISA Section 702 authority, lawmakers should seize the opportunity to enact reforms that reinforce constitutional accountability rather than weaken it. The NDO Fairness Act represents exactly the kind of bipartisan, common-sense safeguard that should accompany any extension of surveillance powers.
 
Americans deserve both security and transparency. Congress should deliver both.
 
Here’s The Washington Post piece in full (paywalled).

​The recent drama in the House and Senate on surveillance reform had more reversals than an episode of the original Game of Thrones series, lots of verbal swordplay with both sides switching places on the Iron Throne.
 
The Legislative Twists and Turns

The House leadership succeeded on Wednesday evening in passing a three-year extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA). This would have amounted to a three-year vacation from oversight for an authority that was enacted by Congress to enable surveillance of foreign threats on foreign soil, but that has also been used by the FBI for warrantless domestic spying on the American people.
 
Yet, a number of House reformers bought into this offer by House leadership, which cleverly attached a promised ban on the creation of a “central bank digital currency.” We applaud this idea but deplore the cynicism behind this tactic. It is true that such a digital currency would end any semblance of financial privacy, giving the government the means to track every transaction by every American in real time.
 
We knew, however, that the anti-digital currency proposal was already dead on arrival in the Senate. It was a shiny but worthless object.
 
Sure enough, Senate Majority Leader John Thune declared the digital currency provision a “poison pill” for Section 702 reauthorization. On Thursday the Senate quickly passed a short-term “clean” reauthorization of Section 702 – for 45 days – which then went back to the House. We are grateful that many of PPSA’s reform allies took to the House floor to complain that Congress is still considering a clean reauthorization bill that offers no substantive reforms at all.
 
What is the state of play now? The issue of whether or not to attach reforms to Section 702 remains unresolved. Thus the Iron Throne remains empty and open to capture by either side. The battle over surveillance reform resumes in when Congress returns in a week and is likely to continue through mid-June.
 
What Was So Bad About the House Leadership’s Proposal

A three-year gap before the next reauthorization of Section 702 would be an excessive delay before the next opportunity for Congress to debate and exercise meaningful oversight over the intelligence community.
 
The regular reauthorization debate – the last one was a mere 18 months ago – is the only opening in the legislative calendar for reformers to press for a warrant requirement for government inspection of Americans’ communications under programs authorized by Section 702.
 
It is the only vehicle by which reformers can press to end the warrantless purchase of Americans’ personal data by federal agencies from shady, third-party data brokers.
 
And it is the only leverage Congress has to narrow a 2024 provision that allows the NSA to secretly compel countless small businesses and houses of worship to spy on customers and congregants.
 
Just as bad, a three-year delay before the next reauthorization debate would leave the intelligence community free to evade scrutiny while it turbocharges its practices with the astonishing privacy-destroying power of AI. Imagine what AI surveillance might look like between now and 2029.
 
We told all of this to Members of Congress, and many responded with alarm. We were encouraged that the three-year extension passed the House by only a slim margin. The vast majority of Democrats opposed the reauthorization, and 22 Republicans stood up to Speaker Johnson’s absurd three-year delay before the next surveillance debate as well.
 
The Struggle Ahead
​
Between now and mid-June, we will continue to work with other civil liberties organizations to educate Members of Congress about surveillance abuse.
 
More and more Members of Congress seem to be getting the message. We exposed the weakness of many so-called reform proposals and the realities of surveillance abuse on our website. This last week, for the first time, the number of visitors to our website topped more than 1 million views, including 402,000 first-time visitors.
 
PPSA peppered Congress with email blitzes detailing the deficiencies of leadership proposals that were long on cosmetics but short on substance. We were delighted to see that the open rate of PPSA’s Key Vote Alerts to senators, representatives, and staff reached 42 percent, far above the industry average of around 15 percent.
 
Most important of all, PPSA worked to keep you up to speed, with our website, social media outreach, virtual briefings, and our newsletter on the intelligence community’s latest shenanigans.
 
Our voice on Capitol Hill would not be heard without you. You answered our call to blitz congressional offices with your emails and calls – and the result can be seen in the fact that surveillance reform lives to fight another day.
 
So thank you for your support of PPSA. And above all, thank you for showing up when we issued calls to action by contacting your representatives in Congress. With your efforts, surveillance reform is still in play. With your continued support, we will stand our ground for Americans’ privacy.
 
Fingers crossed.

In the seven years that PPSA has tracked developments in federal surveillance programs, we’ve witnessed a quantum leap in public understanding and concern about our government’s warrantless domestic spying.

When we began, we had to explain that Section 702 of the Foreign Intelligence Surveillance Act was a legal authority enacted by Congress to permit surveillance of foreign targets on foreign soil. We went on to explain that this foreign surveillance authority had been expanded by the intelligence community to make warrantless searches, called queries, of Americans’ personal communications that get sucked into the NSA’s global trawl of data.

We now find that most Americans we talk to have a good understanding of this. And they are not happy about it.

By 2023, four out of five Americans were insisting on strong surveillance reform. In the last reauthorization of Section 702 in 2024, awareness and alarm had grown so much that a warrant requirement for the authority failed in the House in a tie vote. Sixty percent of Republicans – a majority of the majority – voted for that warrant requirement.
​
This week, the House will likely vote on Section 702 reauthorization. The big decision will be whether House leadership will allow Members to vote on reform amendments, or whether they will try to ram through the basic authority ornamented with sham “reforms.”

As this happens, we are pleased to see so many Republicans and Democrats taking a stand against what is essentially a clean, or reform-free, reauthorization. Four out of five Americans are in favor of strong surveillance reform. That concern is now so deep that it has begun to percolate into state legislative campaigns.
​
Enter Vic Meyers, a Democratic candidate for Colorado House District 47.

Meyers read a Washington Post report in 2023 that the FBI misused Section 702 nearly 300,000 times in 2020 and 2021, including searches involving people arrested at protests. He is now proposing a law to forbid Colorado from collecting bulk data or sharing it with the federal government. Meyers says in a recent YouTube post:

“Think about how long it would take you, or you and 100 others, to conduct 300,000 searches of data collected on Americans, and remember that was just one agency in just over one year that we know about. That kind of data mining is only possible because of AI …”

“If you're thinking, well, hey, Vic, I don't talk to people overseas, think again.

“Customer service calls, scam emails, call centers. You don't control where your data goes. These are the kinds of things that could put your communications into a government database. I don't know about you, but I'm not willing to trade any of my liberty just for the simple possibility of more safety …”

We hear the same sentiments from innumerable Republicans as well.

Leaders in Congress ignore the explosive level of concern about warrantless federal surveillance at their peril. They would be well advised to include reasonable reforms that allow plenty of room for government to respond to emergencies, terrorism, cybersecurity, and other immediate threats.

If a clean reauthorization does occur this week, it would be a Pyrrhic victory for the intelligence community. A populist, bipartisan volcano is rumbling. It would be foolish to ignore it.

After a spectacular failure to push through an extension of FISA Section 702 in the middle of the night late last week, Speaker Johnson is now advancing a proposal that would do next to nothing to protect the millions of Americans whose emails, texts, and other communications have been caught up in the FISA database and read by the FBI and other government agencies, all without a warrant.

Speaker Johnson’s proposal forbids the “targeting” of U.S. persons for initial data collection under Section 702. But Section 702 already prohibits targeting U.S. persons. What it doesn’t prohibit is collecting and reading millions of Americans’ communications that get “incidentally” sucked into the NSA’s global trawl of data. In short, the proposal is a diversion that restates existing law as a reform, the policy equivalent of fool’s gold.

Notably, the proposal also does nothing to protect everyday Americans whose geolocation, online search history, and other sensitive personal information are routinely purchased by the FBI and other government agencies without a warrant. It also leaves intact an absurdly broad definition of “electronic communications service provider” under Section 702 that allows the NSA to compel millions of entities – from commercial landlords to everyday businesses and even houses of worship – to assist in Section 702 surveillance. And it does nothing to strengthen amicus participation in the FISA Court to protect civil liberties.

Minor Tweaks Instead of Reforms     
         
The bill’s so-called “reforms” primarily consist of tweaks to existing intelligence agency procedures. Rather than installing constitutionally mandated standards and safeguards, such as warrants issued by a judge, the Speaker’s proposal makes modest changes to the internal procedures of executive branch agencies.

Three Years Before the Next Debate Is Too Long in the Age of AI

The proposal would delay the next reauthorization of Section 702 for three years. With the rapid evolution of AI and its ability to sort individuals’ data into personal dossiers, giving the government a blank check to spy on Americans for three more years is far too long. The regular reauthorization cycles of Section 702 are the only real remaining leverage Congress has for meaningful surveillance reform. One or two years would be an acceptable reauthorization length, but three is a bridge too far.

The House Has Alternatives

In 2024, 60 percent of Republican House Members voted in favor of a robust warrant requirement. Last week, a House majority opposed a “clean” reauthorization. This is in keeping with the vast majority of the American public that supports a warrant requirement. It is time for Members to demand an up-or-down vote on real reform amendments to Section 702. And it is time for Speaker Johnson to give it to them.

Contact Your Representative

Click here to tell your U.S. Representative in the House that any reauthorization of FISA Section 702 must include serious reforms to curb the government’s spying on innocent Americans.

At 2 a.m. on Friday, the House of Representatives did something rare in Washington. It said no.

A deeply flawed proposal to reauthorize Section 702 of the Foreign Intelligence Surveillance Act went down in flames – and deservedly so. That bill would have imposed a weak, cosmetic warrant standard that would have made privacy protections worse, not better. It would have also reauthorized this authority for another five years, denying Congress a vehicle for oversight and debate over evolving surveillance technologies and practices until 2031.

We’ve since heard the intelligence community and its champions spread the word to the media and on Capitol Hill that Friday’s failed reauthorization was caused by irresponsible “obstructionism” fomented by the extremes of both parties at the expense of national security.

That’s nonsense – hogwash, even.

On Friday, the House voted 228-197 to shelve Speaker Mike Johnson’s deeply flawed “clean” version of Section 702. Even that substantial bipartisan majority didn’t fully reflect the will of the more than three-fourths of Americans who support a warrant requirement before the government can collect and review Americans’ private communications.

Why shouldn’t a majority of the majority have the right to vote on reforms again?

After the Friday night version of Section 702 failed, both houses of Congress voted to extend that surveillance authority to the end of April. This gives Congress and the public time to fully grasp the ends and outs of this debate.

Here are three expert resources to do just that:

What Is Section 702 – What Does It Do and Why Is It So Important?

Liza Goitein of the Brennan Center for Justice has produced a clear, readable primer on Section 702. She sets out the purpose and structure of this surveillance authority. She gives solid answers about how the government uses Section 702 for backdoor searches, and how a warrant requirement for Americans’ data in Section 702 would contain reasonable exceptions that would continue to protect national security.

Why Congress Must Act

Two respected U.S. senators, conservative Mike Lee (R-UT) and liberal Democrat Dick Durbin (D-IL), took to the pages of The New York Times to lay out how much is at stake in the Section 702 debate. These senators note that FBI agents in recent years have searched for the communications of political protesters across the ideological spectrum, Members of Congress, a congressional chief of staff, a state court judge, multiple U.S. government officials, journalists and political commentators, and 19,000 donors to a political campaign.

How Does the Data Broker Loophole Violate Our Privacy?

Rep. Warren Davidson (R-OH) in The Hill highlights a parallel threat: federal agencies’ purchases of Americans’ most sensitive and personal information from third-party data brokers. Rep. Davidson writes:

“Data brokers compile detailed dossiers on millions of Americans, aggregating location histories, browsing activity, app usage, and financial transactions into comprehensive profiles of daily life. This data could be used to create a gun registry by tracking purchase information, or target parents attending school board meetings, or identify people engaged in other First Amendment-protected activities.”

Good Reform Proposals on the Table

There is no shortage of serious reform proposals. The Lee-Durbin Security And Freedom Enhancement Act is a compromise that would pair reauthorization with meaningful Fourth Amendment safeguards.

In the House, Rep. Davidson and Zoe Lofgren’s (D-CA) Government Surveillance Reform Act offers the most comprehensive reform of surveillance law in decades.

Other proposals include Rep. Andy Biggs’s legislation, the Protect Liberty and End Warrantless Surveillance Act.

All of these amendments would curtail the government’s ability to grasp and exploit our personal information at will.

Security and Liberty Are Not Opposites

No one disputes the importance of monitoring foreign threats. Section 702 will – and should be – reauthorized. But it must be reformed to prevent its use as a backdoor surveillance tool for a domestic spying operation.

If you agree, please register your opinion with House Speaker Mike Johnson.

Click here to tell House Speaker Johnson that we can have both national security and respect for the U.S. Constitution. Please drop any attempt at a clean reauthorization of FISA Section 702 that rejects reasonable domestic surveillance reforms.

​As the House debates the extent of domestic surveillance of the American people under Section 702 of the Foreign Intelligence Surveillance Act, our representatives should note a breaking story – that the FBI has investigated the Cato Institute and its employees for years.

Of course, no one is above the law and anyone who appears to have committed a crime can be investigated. But the Cato Institute? Really?

This libertarian think tank attracted luminaries like Nobel Prize-winning economists, including the late Milton Friedman and the late Friedrich Hayek. Its policy papers, podcasts, and videos stand out for their quality of writing and the depth of their research. In a city where many nonprofit public policy institutes are little more than dressed-up public relations shops, Cato fellows are notable for their intellectual integrity and fearless honesty.

In 2019, the FBI responded to a Freedom of Information Act (FOIA) request from Cato fellow Patrick Eddington by swearing that it had “no records” on the organization. On April 15, the FBI reversed course, admitting under pressure from federal Judge James Boasberg that it has investigated Cato employees and the Institute itself for years for potential crimes.

What could these crimes be? Improper footnoting? Misuse of p-values in statistical analysis?
Eddington writes:

“You will search the public record in vain to find any indictment, federal criminal charge, or prosecution of any current or former Cato Institute employee or any charge against the Institute itself for any violation of federal law … 

“These are two distinct but reinforcing problems: an active criminal investigation running in parallel with classified intelligence collection, both shielded from disclosure, both targeting a prominent First Amendment organization, with no public prosecutorial output to show for it.

“So we now have a publicly filed, sworn declaration confirming an active, years-long FBI criminal investigation potentially targeting Cato employees – with zero public record of any resulting indictment, charge, or prosecution spanning what appears to be a timeframe that runs at minimum from before the original 2019 FOIA request through the present. That’s a potentially very long-running investigation of an IRS-recognized, prominent public policy organization engaged in First Amendment-protected activity that, as far as public records reflect, has produced nothing in the way of charges.”

Eddington concludes: “This is precisely the fact pattern that has historically characterized politically motivated surveillance operations conducted under color of law.”

Many on the left also complain that the FBI has subjected their First Amendment organizations to undue scrutiny.
​
Something to think about before the House accepts a rule that would allow no reform amendments to the Section 702 surveillance authority.

Bloomberg’s Annie Bang is reporting on new research commissioned by Swiss-based privacy company Proton. Over the last decade, the government has shown an increasing appetite for user data from companies like Apple, Alphabet, and Meta, with the number of requests increasing 770 percent.

That’s a lot – and it’s a bipartisan habit. As Proton’s Edward Shone told Bloomberg, “This isn’t a blue or red thing – this isn’t a sort of Trump or Biden or Obama thing. It has gone up consistently.”

And that massive increase is just in “standard” requests that are routinely disclosed. The number of requests balloons even more – nearly doubles, in fact – when requests made under the Foreign Intelligence Surveillance Act (FISA) are factored in.

Most of those FISA requests are likely warrantless – obtained via “backdoor” authority granted by the addition of Section 702 in 2008. Instead of being approved by judges, they are batched together and rubber-stamped – meaning no case is made, and there is no showing of probable cause. The Fourth Amendment is bypassed entirely.

Requests for Americans’ data, in just this one slice of the U.S. government’s digital surveillance, adds up to 6.7 million user accounts disclosed over an eleven-year period. It is little wonder, then, that Americans simply do not trust the government with their data.

As FISA and Section 702 come up for renewal this month, urge your representative in the House to support Rep. Andy Biggs’ Protect Liberty Act. Common-sense reforms like these would bring privacy guardrails to Section 702 that would prevent its continued (and obviously growing) abuse as a tool for agencies like the FBI to spy on American citizens without justification.

But the new research by Proton drives home the fact that this isn’t just an FBI problem – it’s a systemic, wide-ranging “government overreach” problem powered by technology. “In many ways, the U.S. government has effectively outsourced its surveillance to Big Tech companies and data brokers,” wrote Proton’s Richie Koch.

Big Tech offers, here and there, end-to-end encryption for users’ communications, from Signal to Apple’s iMessage. But encryption is far from a standard practice. As Elena Constantinescu wrote in describing Proton’s latest report, “Big Tech has repeatedly shown little interest in offering that kind of protection, let alone making it the default, across the services where people store their most sensitive information.” Case in point: Bloomberg noted that Meta just announced the removal of end-to-end encryption for Instagram chats.

Constantinescu is right that privacy begins with tech companies’ designs for their communication services. She writes: “Privacy is a matter of architecture, not just policy.”
​
As the government demands more data, strong and ubiquitous encryption would create less data for government to request or access without a warrant. It is time for Silicon Valley to draw a new set of privacy-forward blueprints that start with a Fourth Amendment foundation.

Congress made a solemn promise on surveillance reform to the American people in public, only to break it in private. As a result, the “Make Everyone a Spy” provision 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 through their buildings’ internet networks. Even churches and other houses of worship can be targeted.
 
As the House debates the reauthorization of Section 702, PPSA and our followers call on House leadership to deliver on this very public promise to narrow the provisions of a loophole in the definition of government electronic communications service providers (ECSP) in Section 702 of the Foreign Intelligence Surveillance Act.
How We Got Here
 
When FISA Section 702 was reauthorized in 2024, it included a provision that was intended to allow the government to compel the cooperation of one particular type of company, believed to be providers of cloud computing, to respond to requests for data for national security purposes. The broad language of this provision, however, allows the National Security Agency to secretly demand access to communications equipment from almost every U.S. business or non-profit organization.
During the Senate debate on this intelligence legislation in 2024, key lawmakers admitted that their draft language was overly broad. They insisted there was no time to fix it, but assured their colleagues that after passage they would work to narrow the ECSP language, making a “technical fix” to ensure that only appropriate entities could be compelled to assist in surveillance. House Intelligence Committee leaders indicated openness to that correction, calling it “totally fine.” 
 
As the U.S. House of Representatives once again moves forward on the next reauthorization of Section 702, that promised fix has been ignored by both houses of Congress for two years.
 
Basic Liberties at Stake
The ability to surveil foreign threats is vital to protecting the homeland and the American people. But PPSA is firm in the conviction that we can have robust surveillance of terrorist and cybersecurity threats without allowing our government to regularly spy on the American people – especially with massive databases supercharged by AI.
For that reason, we ask House leadership to embrace several key reforms.
 
·      First, warrants must be required before Americans’ communications, swept up in NSA’s global trawl, can be accessed by the government.
 
·      Second, the secret FISA courts should be required to rely on qualified amici – civil liberties experts with high-level security clearances – to represent the larger constitutional concerns of the American people in sensitive cases.
 
·      Third, the House should close the “data broker loophole” that allows government agencies to sidestep the Fourth Amendment by buying Americans’ search histories, geolocation histories, and communications from shady, third-party data brokers.
 
·      One more obvious reform is the one already promised: The House must address the “Make Everyone a Spy” provision before reauthorizing Section 702.
 
It is unconscionable that the NSA can conscript vast swaths of American businesses and non-profit organizations that provide ordinary services, such as Wi-Fi, into a domestic spying operation on customers, tenants, and congregants.
 
This ability of the government to spy on media, law firms, political organizations, and religious groups trashes both the First and Fourth Amendments. This is more than a failure in legislative oversight. It is a breach of trust.
 
Just as bad, when combined with other unresolved problems, such as Section 702’s warrantless “backdoor searches,” and the government’s purchase of sensitive personal data by a dozen government agencies, Congress has set the stage for a genuine American surveillance state.
 
Fortunately, the House has no lack of solutions. Bipartisan proposals – from Rep. Andy Biggs’s Protect Liberty and End Warrantless Surveillance Act to the Government Surveillance Reform Act, sponsored by Rep. Warren Davidson and Rep. Zoe Lofgren – contain language that would narrow the ECSP definition.
 
Since Senate leaders did not deliver the ECSP fix earlier in their own chamber, the responsibility now falls squarely on the House. Leadership should not move forward with any intelligence package that ignores this commitment or relies on vague assurances that reforms will come “later,” behind closed doors.
 
Anything less would confirm the worst suspicions of the American people – that when it comes to surveillance, a promised reform is always just one vote away, one that never quite arrives.
 
Click here to tell House Speaker Mike Johnson to drop any attempt at a clean reauthorization of FISA Section 702 that rejects reasonable domestic surveillance reforms.

​“Well, we have to make changes now. Think about this, after January 6th, I was surveilled. All right. During Obama years, they released my tax returns. All right. When I ran a large hospital company, they targeted my company because I was against Hillarycare.

“So, if they can target a large company CEO and a U.S. senator, they can target [all] Americans. We have to have some common-sense changes. Nobody at the FBI has ever been held accountable for the over 200,000 Americans who have been surveilled. Nobody. So, maybe this administration is doing the right thing, but what about the next administration?
​
“So, we have to have some common-sense reforms. We're going to have a couple weeks to start having a real conversation about how we do that. And I'm very optimistic.”

​It was a lot like the Battle of the Alamo – except this time, the defenders won.
 
In the wee hours of Friday morning, a coalition of 20 Republicans and 208 Democrats stopped House leadership from ramming through a reauthorization of FISA Section 702 weighed down by a disingenuous “reform” proposal. That proposal would have expanded the American surveillance state while weakening Americans’ privacy.
 
Worse, it would have punted the next reauthorization five years into the future. A surveillance authority created to track foreign threats – but too often used to conduct warrantless searches of Americans – would not have faced meaningful congressional scrutiny again until 2031.
 
That matters because Section 702 reauthorization is Congress’s only real chance to confront:

• The backdoor inspection of Americans’ private communications without a warrant

 

• The purchase and warrantless use of Americans’ most sensitive digital data from shady third-party brokers

 

• The “make everyone a spy” provision, which allows the NSA to compel access to Americans’ communications from businesses, landlords, and even houses of worship that provide Wi-Fi for their customers, congregants, tenants, and patrons

 
At a time of breakneck technological change – supercharged by AI – a five-year vacation from oversight might as well be a century.
 
Throughout the night, PPSA stayed on offense, providing Members of Congress with clear, fact-driven analysis.

As we pointed out to House Members, the bill’s biggest weakness was its overreach. House leadership tried to sell “reform” while pushing a five-year extension – an overreach that backfired.
 
Members were especially troubled by a Trojan Horse provision dressed up as a “warrant” requirement. In reality, it offered no protection for the vast number of everyday law-abiding Americans whose communications are swept up incidentally in foreign intelligence collection and then searched and reviewed by government agencies without any kind of judicial warrant.
 
Under that language, the FBI could still conduct backdoor searches of Americans’ communications with no evidence of wrongdoing – let alone probable cause.
 
The amendment also ignored the domestic surveillance practices of the NSA, CIA, and National Counterterrorism Center – agencies that collectively conduct thousands of backdoor searches each year. The NSA, in particular, has a long track record of violating the rules governing those searches.
 
Then came the giveaway clause. Buried in the text was a provision stating that “nothing in this subsection shall be construed to limit the authority of the Government under any applicable law or the Constitution …”
 
That’s not reform. That’s a disclaimer.
 
In short, the proposed cure was worse than the disease – especially because it failed to require a warrant before querying Americans’ communications in the Section 702 database.
 
But this fight isn’t over. The House has only kicked the can a few days down the road. The next vote is expected very soon.
 
PPSA will continue to arm Members with the facts – exposing phony reforms and warning against the dangers of locking in five years of largely unchecked surveillance. We’ll also keep you informed as the intelligence community and its allies on Capitol Hill roll out the next round of curveball proposals.
 
The good news: a majority of the House is holding firm for real reform, including a warrant requirement that actually protects Americans.
 
With your support – especially your calls and emails to House Members – PPSA will keep fighting to protect your privacy.