The fatal shooting of 37-year-old Renee Nicole Good by an Immigration and Customs Enforcement agent in Minneapolis is proving to be a national ideological Rorschach Test. Some who watch the video of the event see an officer reacting in fear for his life; others, including former Secretary of State Hillary Clinton, see a “murder.”

As ambiguous as the video may be, imagine if there were no video at all. Would we be better off? At least there is a record that can be examined and debated. Without this video, we would be left with hearsay and fallible memories – weak tools for judging the use of deadly force.

Yet according to the Trump administration, the person who recorded this encounter had no right to do so – and may have even committed a crime.

Department of Homeland Security Secretary Kristi Noem (hat tip to G.J. Ciaramella, Reason) equated filming officers with “violence” and “doxing,” adding “it’s videotaping them where they’re at when they’re out on operations, encouraging other people to come and to throw things, rocks, bottles.” DHS Assistant Secretary for Public Affairs Tricia McLaughlin said that “videotaping ICE law enforcement and posting photos and videos of them online” is a crime, and that “we will prosecute those who illegally harass ICE agents to the fullest extent of the law.”

No one disputes that harassing and threatening officers is a crime. But recording them is not. The right to document public officials performing public duties is well established in federal courts. Seven federal circuits have recognized Americans’ “right to record” – the right to hold up a smartphone and make a video of law enforcement in action.

The Fourth Circuit made that explicit in a case involving a passenger who livestreamed a traffic stop. The court held that “livestreaming a police traffic stop is speech protected by the First Amendment,” explaining that “recording police encounters creates information that contributes to discussion about governmental affairs.”

We have to agree with Reason’s Ciaramella:

“Recording government agents is one of the few tools citizens have to hold state power accountable. Any attempt to define observation as ‘violence’ is not only unconstitutional – it’s authoritarian gaslighting. When a government fears cameras more than crimes, it isn’t protecting the rule of law. It’s protecting itself.”

Too many in the Trump administration have slipped into a lazy – and dangerous – syllogism. “Videotaping” law enforcement = “doxing” = “violence” = “terrorism.” We do not discount by any means the need to protect officers. But the logic now coming from Washington is as simple as it is dangerous.
​
You have the right to record the police. There should be no erase button on this principle.

​The Bill of Rights was ratified on this day in 1791 — guaranteeing that in addition to free speech, freedom of religious exercise, the right to due process, and other natural rights — that the government must obtain a probable cause warrant from a judge before it can search our persons, houses, papers, and effects. It established what the Founders hoped would be a bright line against unreasonable searches and seizures.
 
Unfortunately, with the rise of surveillance technology, the Fourth Amendment is often observed today in the breach. But it is still a shield against police entry into Americans' home and unreasonable physical searches. Let this birthday remind us of the need to jealously guard our freedoms — and extend them to the digital world, as well as the physical. 

Enraged by The Marion County Record’s reporting on a public document about a restaurateur’s DUI, officers of the Marion, Kansas, police department and the local sheriff’s department raided the newspaper, and seized its computers, servers, and cellphones. Editor Eric Meyer had his home raided while his 98-year-old mother Joan – a former editor – watched the police ransack her home in great distress.
 
Joan Meyer died the next day.
 
Marion County has now agreed to pay a total of $3 million to the victims of this raid in 2023 and to Joan Meyer’s estate. The Marion County Sheriff’s Office, for its part in the raid, issued an apology as well as a check:
 
“This likely would not have happened if established law had been reviewed and applied prior to the execution of the warrants.”

The Freedom of the Press Foundation responded by saying:
 
“The First and Fourth Amendments strongly protect against searches of journalists and newsrooms.
 
“Under the Fourth Amendment, a search warrant must be supported by probable cause, which means a likelihood that contraband or evidence of a crime will be found at a particular place. The government must also specify the place to be searched and the thing to be seized.
 
“When a search warrant targets materials protected by the First Amendment – like notes, recordings, drafts, and materials used or created by journalists – the Fourth Amendment’s requirements must be scrupulously followed, the Supreme Court has said.
 
“This means that judges must be extra strict in applying the Fourth Amendment’s requirements when a search impacts First Amendment rights, which it will any time it involves a journalist or newsroom. What judges should never do is allow overly broad searches where police rifle through journalists’ desks and computer files willy-nilly in the hopes of turning up something ‘incriminating.’”
 
The Freedom of the Press Foundation also noted that Kansas, like most states, has a press shield law that would have required a court hearing before law enforcement could rifle through journalists’ confidential sources. The federal Privacy Protection Act of 1980 requires law enforcement to obtain a subpoena, not just a warrant, thereby giving The Record an additional opportunity to challenge the demand in court.
 
The Freedom of the Press Foundation concluded:
 
“Journalists also have a right to publish information given to them by a source, even if the source obtained it illegally, as long as the journalist didn’t participate in the illegality. That means that if a source gives a journalist a document or recording that the source stole, the journalist can’t be punished for publishing it.
 
“Because these things are not crimes, it also means that accessing publicly available information or publishing information that a source illegally obtained can’t be the basis for a raid on a newsroom or search of a journalist’s materials.
 
“Next time, think before you raid.”

​In September, Lynn Adelman, a federal judge in Wisconsin, helped shore up the Fourth Amendment against the Digital Age’s all-out assault on privacy. As we’ve written so often on this site, algorithms and artificial intelligence are existential threats to constitutional rights like search warrants and probable cause.
 
The digital world seeks to automate the process of justice. It is amoral in the name of efficiency, with automated justice tantamount to automated sentencing.
 
The good news is that the “smartest” algorithms, the most “fine-tuned” large language models can still be stopped by a public official who sticks to a solemn oath to uphold the Constitution. This reminds us that true justice will always require a human in the loop.
 
Which is exactly what defendant Peter Braun did not have when Google and Microsoft sent automated alerts – based on “hash value” data patterns alone – to a national clearinghouse. A Wisconsin special agent, alerted by these hash values, then conducted his own investigation into the flagged files and took a peek before deciding to get a search warrant.
 
A warrant obtained after an examination turned up incriminating evidence of child sex abuse material in Braun’s home. Braun subsequently sued to have that evidence suppressed on the basis that its acquisition violated his Fourth Amendment protections. Judge Adelman agreed.
 
An investigator is paid to be suspicious. But no investigator should be able to explore hunches without a warrant. The investigator’s hunches in this case were based on an interpretation of hash values – which, unlike hash tags that group files for users – are cryptographic functions meant to identify data for computing. Hash values are inherently prone to misinterpretation of contents.
 
If the authorities’ motives are well intentioned – and we believe they were in this case – the rule of law still requires that a court must first review the evidence and agree before an investigator can look at a file. We condemn anyone involved in the possession of material that is, and must be, inherently criminal. But that is no reason throw out due process and the Fourth Amendment.
 
Ante omnia hoc, meaning “before all things, this”: The Constitution could not be clearer – GET A WARRANT.
 
Did the Wisconsin authorities have probable cause in Braun’s case? They might have, but in the eyes of the Fourth Amendment they forfeited any such claim because they could not be bothered to go to a magistrate and present their case. That is why Judge Adelman had no choice but to suppress the illicitly obtained evidence.
 
 “It would have been easy for [agent] Koehler to obtain a warrant before viewing the images,” wrote Adelman in his opinion, “but he decided not to do so.” Illegally obtained evidence isn’t evidence at all.
 
We all want the authorities to protect children to the maximum extent under the law. But even Peter Braun has rights – and his rights are our rights. Do we really want the authorities searching our digital lives without a warrant in hand, simply because some unthinking, blunt-force algorithms decided that something seemed suspicious?
 
Judge Adelman also ruled on the basis that reliance on hash values can target many images that are deeply private, but perfectly legal. He wrote: “Here the government omitted any discussion as to the reliability of hash matching in the warrant affidavit, a fatal flaw which undermines the existence of probable cause.”
 
Justice Amy Coney Barrett calls the Fourth Amendment a “principle” of the rule of law. That principle was ratified in 1791 – by humans, for humans, with nary a bit, byte, algorithm, or special agent in sight. Convenience and expediency were never the point of the Fourth. In fact, they were seen as antithetical to the deliberate – and difficult – ruminations justice requires. That the Digital Age is blindly premised upon such efficiencies should give us all pause.

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

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

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

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

 

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

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

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

 

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

 

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

 

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

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

In June, the U.S. Supreme Court granted the petition to hear Case v. Montana after PPSA filed the only brief supporting the Court’s review of a decision of the Montana Supreme Court.

PPSA has now filed its brief on the merits of the dispute. We made it clear that Case v. Montana is a precious opportunity to restore the Framers’ original vision of sharp limits on exceptions to the Fourth Amendment. The Framers jealously guarded privacy. Exceptions to the warrant requirement – exigent circumstances like chasing a bank robber into his home – had to be so pressing (and so obvious) that not granting them would be unreasonable. 

We've since veered off course. A new doctrine introduced in the mid-20th century, “emergency aid,” has threatened to grow into a catch-all category, a Trojan Horse by which the Fourth Amendment is thoroughly subverted. The temptation for law enforcement (and the courts) to treat everything as an “emergency” has never been greater than in this always connected, instant gratification digital age. 

We therefore ask the Court to remind our institutions to take two deep breaths before brushing aside the Fourth Amendment. We told the Court:

1. “The exception does not apply unless the entry is reasonably expected to alleviate, rather than worsen” the emergency. It is all too easy to say, as the State of Montana and the lower courts did in Case, that the police were just doing their job because they were “there to help.” Under that banner, all manner of constitutional violations could be forgiven. Yet the act of entering someone's home without a warrant was anathema to the Framers.
   ​
2. For the Founders, a “home” was the most sacred – and hence the most protected – place in a person’s life. If the Fourth Amendment condones a violation of that sacred, private space, then it also would logically condone a violation of less protected spaces, such as our digital devices. As we told the Court, “If the police do not violate the Fourth Amendment when they search a home or a phone while acting under a valid warrant exception, then anything incriminating they see in that capacity may be used against a person in a criminal prosecution.”

Then as now, exigencies that permit warrantless searches of persons, homes, and property must be defined narrowly, specifically, and in ways that preserve the Court’s respect for what it has called the “privacies of life.” 

Lowering the standard for warrantless “home” entry lowers it for everything. Just because our effects are vastly more digital (and diffuse) today, we have no less a right to be secure in our personal effects and our very lives.
​
We all know how Troy fell. It is time for the Court to take a good look inside the doctrine of exceptions to the Constitution.

Former federal prosecutor Katie Haun reminds us of one of our “favorite” topics – the ill-conceived Bank Secrecy Act (BSA) of 1970, which has brought us to this sorry point of a near-lack of privacy in our financial dealings. She writes:

“Most Americans don’t realize they live under an expansive surveillance regime that likely violates their constitutional rights. Every purchase, deposit, and transaction, from the smallest Venmo payment for a coffee to a large hospital bill, creates a data point in a system that watches you – even if you’ve done nothing wrong.”

The U.S. Supreme Court’s disastrous 1976 ruling in United States v. Miller upheld the BSA and further declared that Americans had “no legitimate expectation of privacy” in checking and deposits. From that point on, Haun laments, it was open season on Americans’ data, but especially our financial information.

The BSA turned banks into spies and its reporting requirements have been weaponized into instruments of political repression. And little wonder, in the digital era and post-9/11, the original act was amended to the point of readily enabling the creation of a mass surveillance state and its attendant bureaucracy. Under the BSA, notes Haun, law enforcement doesn’t need a search warrant to access our financial records:

“A prosecutor can ‘cut a subpoena’ – demanding all your bank records for the past 10 years – with no judicial oversight or limitation on scope … In contrast, a proper search warrant must be narrowly tailored, with probable cause and judicial authorization.”

That last bit is a reference to the basic American right against unlawful search and seizure as guaranteed by the Fourth Amendment. But ever since the Bank Secrecy Act laid the foundation and the Supreme Court put up the walls, true financial privacy is a right Americans no longer possess. And without reforming the BSA, warns Haun, we may never get it back:

“Indiscriminate financial surveillance such as what we have today is fundamentally at odds with the Fourth Amendment in the digital age. Technological innovations over the past several decades have brought incredible convenience to economic life. Now our privacy standards must catch up. With Congress considering landmark legislation on digital assets, it’s an important moment to consider what kind of financial system we want – not just in terms of efficiency and access, but in terms of freedom. Rather than striking down the BSA in its entirety, policymakers should narrow its reach, particularly around the bulk collection and warrantless sharing of Americans’ financial data. Financial surveillance shouldn’t be the price of participation in modern life.”

We couldn’t agree more. And we hope that savvy BSA reform legislation proposed this session will find fertile ground in Congress among Republicans and Democrats alike.

Unfortunately, in the meantime, the Fourth Amendment remains for sale.
​
For further reading, check out this piece from the Pacific Legal Foundation.

​During last year’s congressional debate over surveillance, many defenders of the status quo, including then-FBI Director Christopher Wray, argued that a warrant requirement for the inspection of Americans’ personal information would be a security risk because it would be too time-consuming and burdensome.
 
But a recent response to one of our Freedom of Information Act (FOIA) requests filed with the Criminal Division of the Department of Justice shows that filling out warrant applications are routine and close to boilerplate.
 
In recent years, many of our FOIA requests have gone ignored. In one instance, we received a rude response from the Department of Justice in which 39 pages were redacted, and the 40th page only said: “Hope that’s helpful.”
 
Perhaps there has been a recent change of heart at DOJ. When we sought documents about cell-site simulators (which mimic cell towers and trick cellphones into revealing personal information), we received a polite and partial response. Included in the release was a draft affidavit to guide special agents of the FBI in applying to a U.S. district court to obtain a search warrant to identify a particular cellular device.
 
In it, an agent is prompted to:
 

• Provide evidence that the target device is located within a given area.

 

• There is probable cause to believe that the targeted individual is likely carrying the targeted cellular device, and is “necessary to identify the suspect and establish a connection between the suspect and the suspected crime.”

 

• “Once investigators ascertain the identity of the Target Cellular Device, they will cease using the investigative technique.”

The draft warrant application concludes: “A search warrant may not be legally necessary to compel the investigative technique described herein. Nevertheless, I hereby submit this warrant application out of abundance of caution.”
 
The agent then submits this document as sworn testimony.
 
PPSA hopes this response to our FOIA is a sign of a renewed commitment to meet our lawful requests for documents. And we urge surveillance hawks to consider that the routine filing of such applications demonstrates that it is far from excessively burdensome.
 
There, that wasn’t so hard now, was it?

​When you seal and mail a letter, the fact that you’re sending something via letter is not private – the addresses, the stamp, etc. Those are all visible and meant to be seen. You mailed a sealed letter. Everybody knows it. You can’t walk into FedEx or the Post Office screaming at strangers, “Don’t you dare look at me while I’m mailing this letter!”
 
Ah, but the contents of your sealed letter? Now that’s private. No one is entitled to know what’s inside except for you (and anyone you consent to give permission to, like a recipient).
 
And so it is with electronic storage services like Dropbox. The fact that you have a Dropbox account is not private, but what you store there is.
 
And that’s a big deal, because believe it or not, it hasn’t been entirely clear if electronic communications (including files stored in the cloud) are protected by the Fourth Amendment from unlawful search and seizure by the government.
 
But now we know. The Fifth Circuit Court of Appeals wrote in an opinion issued just last week: “The Fourth Amendment protects the content of stored electronic communications.”
 
If you didn’t intend for something to be public and made a reasonable effort to keep it private (such as password-protecting it in the cloud), you’re entitled to privacy. The government doesn’t have the right to access it without a warrant and probable cause.  
 
In the case at hand, Texas officials used a disgruntled ex-employee of a contractor to spy on the contractor by searching its Dropbox files. To quote the Fifth Circuit, “This was not a good-faith act.”
 
File (pardon the pun) all of this under “reasonable expectation of privacy.” Brought to you by the Fourth Amendment to the United States Constitution. Proudly serving Americans since 1791.  

​If you want to see what leadership looks like when it comes to protecting data privacy, head to Big Sky Country. Montana Gov. Greg Gianforte just signed a bill limiting the state’s use of personal electronic data. That makes Montana the first state to pass a version of the federal bill known as the Fourth Amendment Is Not for Sale Act.
 
The chief provisions of the new Montana law include:
​

• Government entities are prohibited from purchasing personal data without a warrant or subpoena issued by a court.
  
  
• Authorities may not access data from personal electronic devices unless the owner consents, a court agrees that there is probable cause, or the situation is a legitimate emergency.
  
  
• Courts must hold as inadmissible improperly obtained personal data.
  
  
• Service providers cannot be forced to disclose their customers’ personal data unless a court has granted permission.

There must be something in Montana’s clean, libertarian air these days, because the governor is expected to sign another pro-privacy bill soon. That bill bolsters the state’s existing consumer data privacy act, the Montana Consumer Data Privacy Act (MTCDPA), in several ways:

• Obvious (and straightforward) methods must be available for consumers to choose if they want their personal data sold or used for targeted advertising.
  
  
• Greatly increasing the number of organizations that are subject to the MTCDPA.
  
  
• The state’s Attorney General can now quickly respond to privacy act violators. No more 60-day waiting period.
  ​
  
• The new law makes transparency more transparent. For example, privacy notices have to be clearly hyperlinked from websites or within apps.

We hear Montana is beautiful this time of year. If you go, take a moment to appreciate that your data is safer there than anywhere else in the country. Let’s hope that what happened in Montana last week will inspire federal lawmakers to follow suit and pass the Fourth Amendment Is Not for Sale Act.

​The U.S. First Circuit Court of Appeals in 2024 held that the IRS did not violate the Fourth Amendment when it scooped up the financial records of one James Harper through a broad dragnet of the Coinbase cryptocurrency exchange. The court based this finding on a sweeping interpretation of the “third-party doctrine,” which “stems from the notion that an individual has a reduced expectation of privacy in information knowingly shared with another.”
 
Given the terabytes of personal data that technology forces us to hand over to third-party companies, including our most intimate data – personal communications, online searches, health issues, and yes, financial holdings – does this mean that, as the First Circuit and other lower courts have ruled, there is essentially “no legitimate expectation of privacy” in that data?
 
Consider that the U.S. Supreme Court has repeatedly held that the Fourth Amendment protects “that degree of privacy against government that existed when [it] was adopted.” Times change and technology evolves. Any inquiry into reasonableness should require a periodic recontextualizing of what the Founders intended. That’s not anti-originalism; it’s just a common-sense application of original intent with new technology and capabilities.
 
The Supreme Court did just that in Carpenter v. United States, holding that the warrantless seizure of cell phone records constitutes a Fourth Amendment violation. In this case, at least, the high Court held that a reasonable expectation of privacy exists even when information is held by a third party.
 
As the Court wrote, “when an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ official intrusion into that sphere generally qualifies as a search and requires a warrant supported by probable cause.”
 
That goes not only for cell phone records but for any data that is supposed to be private.
 
In our brief that PPSA filed with the Court, we explain that:
 
“Despite Carpenter’s clear warning against allowing the third-party doctrine to degrade privacy via a ‘mechanical interpretation of the Fourth Amendment’ … lower courts have generally failed to heed that warning. Rather, they mechanically first ask if the information was disclosed to a third party and then treat this disclosure as a complete carveout from Fourth Amendment protections unless the circumstances closely or identically match Carpenter’s narrow facts.”
 
In this era of breakneck technological change and cloud computing, much of our personal information is disclosed to third parties – even information of the most sensitive kind. An interpretation that third-party disclosure automatically nullifies your right to privacy is a flawed approach in the 21st century. 
 
As we demonstrated in our brief, the Supreme Court must act to “prevent a contrary understanding of Carpenter from continuing to erode Americans’ privacy as third-party storage becomes ubiquitous and artificial intelligence becomes powerful enough to piece together intimate information from seemingly innocuous details about a target’s life.”  
 
Technology is evolving too robustly and too rapidly for the third-party doctrine to remain stuck in the era of paper bills. The First Circuit’s extreme interpretation of the third-party doctrine is a quaint vestige of a prior age, no longer equal to technologies that the Supreme Court ruled contain all “the privacies of life,” and it would make the Fourth Amendment a mere piece of ink on parchment rather than a true safeguard of Founding-era levels of privacy.

​April 19, 2025, is the 250th anniversary of the American Revolution. It’s a story most Americans know pretty well, but here at PPSA we’d like to highlight one of the more obscure portions of that history, but one that is of ultimate importance to the all-but-impossible dream the Revolution would eventually make real: The Bill of Rights.
 
The subject of today’s lesson? General warrants. If that doesn’t ring a bell, then be glad, because that means the Bill of Rights largely did its job. General warrants were one of the primary tools of tyranny King George used to oppress, even terrorize, the Colonists. Armed with general warrants, the Crown’s agents could search anywhere they wanted, for anything they wanted, and for any reason — or, even worse, for no reason at all.
 
General search warrants don’t name a specific person or place and don’t state what the authorities are looking for – making it possible to target people without reason or cause, and almost without limits. As you can imagine, such writs were widely abused. To quote the Declaration of Independence, the King “sent hither swarms of Officers to harass our people and eat out their substance.” Barging into homes, destroying property, searching belongings, and seizing whatever they wanted. And not just homes – shops, ships, banks, churches. Americans had had it.
 
And on April 19, 1775, they said enough was enough. And they meant it. Sixteen years and 8 months would pass between that day and the day the Fourth Amendment was ratified. The Fourth Amendment exists because it was, and is, the best answer to the outrageous indignity of general warrants. That’s what historians call a “direct line.”
 
It's appropriate on this occasion to also recall a recent historical reminder from Rep. Jamie Raskin, a Democrat who happens to represent a district from Maryland, one of the thirteen original colonies – “The Old Line State” – a moniker earned in blood defending Washington’s army on multiple occasions. 
 
Speaking recently at a House Judiciary Subcommittee hearing on government surveillance, Raskin quoted James Madison: “The essence of government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” It’s no accident of history that Madison drafted what would become the Fourth Amendment. Two and a half centuries later, patriots of all stripes are called once again to hold the line against a modern, invasive, and warrantless surveillance state.
 
That we are still battling unlawful searches and seizures suggests, in a sense, that some things never change. But it also proves the timeless wisdom of those original ideas – that some things should endure. In the Fourth Amendment and Bill of Rights, the Founders left us a sacred trust. “The right to be let alone,” wrote Justice Louis Brandeis, is “the most comprehensive of rights and the right most valued.”

​An administrative subpoena is a contradiction in terms – a compulsory government demand for records issued without a judge. It is a tool that bypasses the judiciary, sidestepping the Fourth Amendment’s core protection of neutral oversight.

PPSA filed a Freedom of Information Act request with the Department of Justice’s Office of the Inspector General (OIG) seeking clarity on how administrative subpoenas are used – specifically, whether they require probable cause and whether any have ever been denied for lacking it. On those points, the OIG said it had no records. But it did release one document – a 15-page internal manual that shows how investigators issue subpoenas – often without court involvement and sometimes without notifying the target.

The manual makes one thing clear: subpoena power isn’t just held by top DOJ officials. It’s been pushed down the chain to the very investigators working the cases. FBI Special Agents in Charge (SACs) in field offices can issue subpoenas on their own authority – no judge, no internal check, no outside approval. Unless the target is someone “sensitive,” such as a journalist, judge, or senior government official, nobody else has to sign off.

These SAC-issued subpoenas can grab a lot, including names, addresses, phone logs, session times, and payment details from phone and internet providers. They can also pull records from hotels, rental car agencies, utility companies, and more. If financial records are involved, agents can delay telling the customer for up to 90 days. But in many cases, the manual doesn’t require telling the person at all. The government often collects this data quietly, without the target ever knowing.

And the courts? They only show up if someone refuses to comply. At that point, the OIG might ask a judge to enforce the subpoena. But that’s the exception. Most subpoenas never see a courtroom. The OIG has no records showing that it applies any standard, like probable cause, before issuing them. And its manual doesn’t lay out a clear evidentiary threshold. That means there’s no neutral party reviewing the request, and no formal limit on how broad or invasive it can be.

This might be legal under current statutes, but it doesn’t square with the U.S. Constitution. The Fourth Amendment is meant to protect us from unreasonable government demands for our private information. That protection means more than just saying ‘no’ to searches. It means requiring the government to justify its snooping before it happens. When agents can issue their own subpoenas without a judge’s okay, and collect sensitive personal data without notice, those safeguards vanish. And when the data involved reveals what people believe, where they go, and who they talk to, it’s not just a privacy issue. It’s a First Amendment problem, too.

No government investigator should have the power to demand private records without meaningful guardrails. If the government wants access to your private records, it should meet clear standards and operate under real oversight. When free speech, a free press, or freedom of association are on the line, the protections should be even stronger.
​
PPSA urges Congress to put limits on administrative subpoenas before they quietly erode the rights our nation’s founders set out to protect.

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

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

Suppose you have a next-door neighbor you trusted to help you sell some items online, in exchange for a share of the profits. You give him a key for easy access, and all seems to go well. Sometime later, you can’t remember the combination to your safe, so the locksmith opens it, and you discover your cash is gone. You suspect your neighbor and report him. The police raid his home and collect his cellphone along with other evidence. Law enforcement then obtains a warrant to search the phone, and finds it contains incriminating text messages. A conviction is obtained on that basis.
 
This scenario is based on Michigan v Carson. The warrant in question initially appeared to restrict the phone search to data pertaining to larceny and safe-breaking. So far, so good. But subsequent clauses in the warrant contained language that effectively negated any sensible limitation. The additional language was so expansive as to give authorities carte blanche to search every single piece of data the phone could offer up.
 
What began as a reasonable search within the Constitution’s guardrails for particularity morphed into a broad search amounting to a general warrant.
 
For this reason, PPSA filed an amicus brief before the Michigan Supreme Court showing that the contents of a phone are equivalent to physical documents and other items in a home. Both are personal property and therefore protected from exploratory searches by the Fourth Amendment, which requires that the “things to be seized” be described in very specific terms. This requirement is in fact the heart of the Fourth Amendment – the prohibition of unencumbered search and seizure regularly visited on colonial citizens by British authorities.
 
Searching all data on a modern smartphone is the 21st-century equivalent of ransacking homes and personal property without restriction, only worse.
 
The language in the Carson warrant is something that should give every American just as much pause. The police, it said, could “seize and search” all data on the phone and SIM card, and “all records or documents which were created, modified, or stored in electronic or magnetic form and any data, image, or information that is capable of being read or interpreted by a cellular phone or a computer.”
 
The warrant also contradicted itself by further authorizing the seizure of other physical items, rendering it unconstrained. In the colonial era, this amounted to a writ of assistance, another insidious form of search and seizure that, along with general warrants, were top of mind when the Fourth Amendment was crafted.
 
Whether electronic information or physical belongings, personal “effects” are subject to the same privacy principles. One could painstakingly reconstruct a target’s entire private life using the contents of their phone. It’s arguably a far more intrusive violation than rummaging through the documents in a dwelling.
 
Just think about the contents of your own smartphone for a moment and how you would feel if it was all exposed. It is for this reason that the U.S. Supreme Court held that cellphones contain “the privacies of life.”
 
When it comes to any warrant, its degree of particularity can vary greatly depending on the specifics of the case. But the intent of the Fourth Amendment is that every warrant must be limited in some sensible way.
 
The warrant being challenged in Michigan v Carson contained no limits. Its scope was unbounded and that is why we demonstrated to the Michigan Supreme Court that this search was unconstitutional.

​In internal documents unearthed by a PPSA Freedom of Information Act (FOIA) request, the Drug Enforcement Administration (DEA) implicitly admits it searches the cellphones of innocent people who may be lumped in with the guilty.
 
One such document was a template for a search warrant affidavit used when DEA seeks to surveil its targets using cell-site simulators, also known as stingrays. The affidavit template commendably advises: “At a minimum, it is necessary to establish probable cause to believe that the suspect is likely to be carrying the Target Cellular Device, and that records about that cellular device’s use will be pertinent to the investigation.”
 
So far, so good.
 
Then the affidavit template advises that it is “often” the case that the Targeted Cellular Device is carried by someone who is “also” a suspect. Thus, the template contemplates two categories of searches – suspects and those who may not be suspects. This might mean, for example, that a suspected drug dealer’s phone, if used by his teenage daughter, could subject her communications to a search.
 
The DEA is thus led, as is so often the case in surveillance, by the robustness of modern technology that combines the privacy rights of the innocent in investigations of suspects of a crime. If the probable cause justification violates the privacy of people who are “often” suspects, what does this mean to those who are somehow adjacent to a suspect?
 
Other documents obtained in FOIA responses from the DEA showed eight instances in recent years in which it waived the Fourth Amendment requirement for a probable cause warrant for the use of cell-site simulators for cellphone surveillance.
 
These searches of cellphones were performed under “exigent” circumstances. These are emergencies in which law enforcement must move immediately – typically, the abduction of a child, a mass shooter ready to act, or a terrorist on the verge of a mass casualty attack. PPSA supports the need for law enforcement to be free to move forward in such emergencies. Congressional oversight would benefit, however, if the DEA offered categories of justification for these exceptions so we can be assured that they were genuine emergencies.
 
A final note: PPSA had to pull teeth to get the DEA to respond to our FOIA request, which it is required to do by law. We asked for responsive records on “exigent” and “emergency” circumstances in 2023. DEA waited a year to respond. Its response in February, however, was a denial, citing FOIA’s “Exemption 2” – which permits withholding records related solely to an agency’s internal personnel rules and practices. But PPSA did not ask for HR records and practices. Courts have held that “Exemption 2 is not subject to … a genuine and significant public interest,” which certainly describes the surveillance practices of the DEA.
 
To get a response to our FOIA request, PPSA had to appeal to the Office of Information Policy (OIP) of the Department of Justice. OIP overruled the DEA, which subsequently produced the records we quote here. Such grudging responses to the Freedom of Information Act by the DEA force us to look at its practices through a glass darkly. Perhaps the next Congress will take our insights as guidance to direct the DEA to be more forthcoming about its surveillance practices and how they impact the American people.

​The Fourth Amendment of the U.S. Constitution requires authorities to obtain a probable cause warrant before entering an American’s property. But Pennsylvania knows better. The Keystone State has a law that permits Waterways Conservation Officers – in plain language, fish wardens – to enter private property without a warrant to enforce fishing laws.
 
Call it the fishing exception to the Fourth Amendment.
 
Tim Thomas and his late wife Stephanie discovered this purported legal loophole in 2023 while at their home on Butler Lake in Susquehanna County. (Hat tip for this story to Dan King of the Institute for Justice.) Pennsylvania Waterways Conservation Officer Ty Moon terrified Stephanie by banging on her front door, entering the Thomases’ backyard and standing on the porch to bang on her back door. He then took pictures of the couple’s cabin, vehicle, and boat. No warrant needed.
 
The next day, the Thomases had pulled over to the side of the road to pick flowers, only to be confronted by officer Moon, who jumped out his car and accused the couple of illegal fishing. They later received a citation accusing Tim of evading the officer and fishing without a license. The charges were dismissed.
 
Undeterred, Moon surveilled these very dangerous people with binoculars on a stakeout. Thinking he saw more rods on a boat that were legally allowed, he tramped several times up and down the side of the Thomases’ property, each time walking past a window where Stephanie, who was battling Stage IV cancer, had settled into a bath. (See the Institute for Justice’s compelling video on the case here.) The officer again accused the couple of breaking the law. This case against the Thomases also collapsed in court.
 
Now the Institute for Justice has filed a federal lawsuit against the Pennsylvania Fish and Boat Commission seeking to strike down this blatantly unconstitutional law. “You don’t lose your constitutional rights simply because you happen to live near a lake,” says Institute for Justice attorney John Wrench. “That’s why we’re challenging the Pennsylvania statute that authorizes these outrageous searches.”
 
We could end this piece with puns about wardens fishing for a crime, or the same wardens having to face the scales of justice, or constitutional arguments that will be like shooting fish in a barrel. But we see two larger issues with serious implications arising from this case. The first is that lawmakers in a major American state could be so out of touch with the roots of the law that they thought that there could be a fishing exception to the Constitution’s Fourth Amendment. Second, if a fish warden can be this invasive and clueless, just imagine how dangerous federal agencies can be on cases where the stakes go well beyond a mere citation.

​The Customs and Border Patrol (CBP) has little respect for the Fourth Amendment. From international airports to border stations, Americans returning from abroad often fall prey to the routine CBP practice of scanning their laptops, mobile phones, and other digital devices without a warrant.
 
As if that were not enough, CBP also scans people’s faith, violating their First Amendment rights as well.
 
Consider the case of Hassan Shibly, a U.S. citizen and student at the University of Buffalo Law School. When he returned to the United States in 2010 with his wife, a lawful permanent resident, and their seven-month-old son, from a religious pilgrimage and family visit in the Middle East, Shibly was taken aside by CBP agents. A CBP officer asked him: “Do you visit any Islamist extremist websites?” And: “Are you part of any Islamic tribes?” And then the kicker: “How many gods or prophets do you believe in?”
 
Other returning Muslim-Americans are interrogated about the mosques they attend, their religious beliefs, and their opinions about the U.S. invasion of Iraq and support for Israel. One New Jerseyan, Lawrence Ho, attended a conference in Canada and returned to the United States by car. He was asked: “When did you convert?” Ho does not know how the agent knew he had converted to Islam.
 
A group of Muslim-Americans, fed up by this treatment, are now being represented by the American Civil Liberties Union in a suit before the Ninth Circuit Court of Appeals against CBP for civil rights violations. The plaintiffs are correct that subjecting Americans to deep questions about their faith – as a condition to reentry to their home – violates their First Amendment rights, as well as the Religious Freedom Restoration Act (RFRA).
 
Ashley Gorski, senior staff attorney with ACLU’s National Security Project, said that “this religious questioning is demeaning, intrusive, and unconstitutional. We’re fighting for our clients’ rights to be treated equally and to practice their faith without undue government scrutiny.”
 
To be fair, CBP has its work cut out for it when it comes to screening the border for potential terrorists. And we should not avert our eyes to the fact that there are sick and dangerous ideologies at work around the world. But we are also fairly confident that actual terrorists would not be stumped by the kind of naïve and unlawful interrogations CBP has imposed on these returning Americans.
 
Heavy-handed questions about adherence to one of the great world religions doesn’t seem to be a useful security strategy or a demonstration that our government is familiar with its own Constitution.

​The FBI, which surveilled academics at the University of California, Berkeley, in the 1950s and 1960s, is now reaching out to a think tank on that campus for help in devising ways to break encryption and other privacy measures used by consumers and private social media companies.
 
In this task, the FBI is seeking advice from the Center for Security in Politics, founded by former Arizona governor and Homeland Security Secretary Janet Napolitano, to devise ways to access the contents of communications from apps and platforms.
 
“We need to work with our private-sector partners to have a lawful-access solution for our garden-variety cases,” one FBI official at the event told ABC News. The FBI’s actions are in keeping with a growing global crackdown on encryption, highlighted by the recent arrest of Telegram founder Pavel Durov in France.
 
We could take days trying to unravel this Gordian knot of ironies. Better to just quote Judge James C. Ho of the Fifth Circuit Court of Appeals, who wrote in a recent landmark opinion on geofence warrants that: “Hamstringing the government is the whole point of our Constitution.” In finding geofencing the data of large numbers of innocent people unconstitutional, Judge Ho noted that “our decision today is not costless. But our rights are priceless.”
 
The FBI has a lot of tools to catch the drug dealer, the pornographer and the sex trafficker. After all, the Bureau has been doing that for decades. The best mission for the partnership between the FBI and the Center for Security in Politics would be to focus on the “lawful-access” part of their quest. With so many smart people in the room, surely they can invent new and effective ways to solve many crimes while honoring the Fourth Amendment.

​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.”

​PPSA has fired off a succession of Freedom of Information Act (FOIA) requests to leading federal law enforcement and intelligence agencies. These FOIAs seek critical details about the government’s purchasing of Americans’ most sensitive and personal data scraped from apps and sold by data brokers.
​
PPSA’s FOIA requests were sent to the Department of Justice and the FBI, the Department of Homeland Security, the CIA, the Defense Intelligence Agency, the National Security Agency, and the Office of the Director of National Intelligence, asking these agencies to reveal the broad outlines of how they collect highly private information of Americans. These digital traces purchased by the government reveal Americans’ familial, romantic, professional, religious, and political associations. This practice is often called the “data broker loophole” because it allows the government to bypass the usual judicial oversight and Fourth Amendment warrant requirement for obtaining personal information.

“Every American should be deeply concerned about the extent to which U.S. law enforcement and intelligence agencies are collecting the details of Americans’ personal lives,” said Gene Schaerr, PPSA general counsel. “This collection happens without individuals’ knowledge, without probable cause, and without significant judicial oversight. The information collected is often detailed, extensive, and easily compiled, posing an immense threat to the personal privacy of every citizen.”

To shed light on these practices, PPSA is requesting these agencies produce records concerning:
​

• Purchases of Commercially Available Data: Records detailing purchases of data on U.S. persons and businesses, including the amount spent, the size of datasets, and data sources.

 

• Frequency of Data Acquisitions: Records showing how often the agency acquires data from third-party brokers.

 

• Vendors: Information on the number of foreign and domestic data vendors selling data to the agency.

 

• Categories of Data: Records indicating the types of commercially available information obtained from these vendors.

Shortly after the House passed the Fourth Amendment Is Not For Sale Act, which would require the government to obtain probable cause warrants before collecting Americans’ personal data, Avril Haines, Director of National Intelligence, ordered all 18 intelligence agencies to devise safeguards “tailored to the sensitivity of the information.” She also directed them to produce an annual report on how each agency uses such data.
 
PPSA believes that revealing, in broad categories, the size, scope, sources, and types of data collected by agencies, would be a good first step in Director Haines’ effort to provide more transparency on data purchases.

​“Curtilage” is a legal word that means the enclosed area around a home in which the occupant has an expectation of privacy. Within the zone of curtilage, the Fourth Amendment implications usually force law enforcement officers to obtain a warrant before they can enter. Where curtilage begins and ends has long been a matter of fine, Jesuitic distinctions, hotly contested in courts across the country.
 
Sometimes the boundaries are obvious. In a landmark case, the U.S. Supreme Court in 2021 held in Lange v. California that a police officer who followed a driver into his garage entered his curtilage. The officer had no right to do so without a warrant. PPSA was pleased to see the Court adopt logic similar to our amicus brief in Lange.
 
So much for garages. Now what about doorknobs?
 
Terrell McNeal Jr. of Mankato, Minnesota, was arrested after police obtained a probable cause warrant to enter his apartment and found controlled substances, cash, and guns. The evidence behind the warrant was derived from his doorknob. A police officer had earlier obtained a code from the apartment’s landlord to enter the structure’s interior communal space. He had proceeded to swab the doorknob of McNeal’s front door. It tested positive for two controlled substances. That was the basis of the warrant.
 
The doorknob was tainted, to be sure. But that left a nagging legal question: Was the search warrant itself tainted by a violation of McNeal’s curtilage?
 
A district court did not think so. It bought the prosecution’s argument that the door handle and lock were outside of McNeal’s home. A county prosecutor made this point on appeal: “If the court looks at the door itself, it prevents people from looking into the home. That doesn’t make the outside of the door curtilage.”
 
Actually, it does, ruled the Minnesota Court of Appeals. On June 10, the appellate court found that officers have “no implied license to remove material from the door handle and lock for laboratory testing.”
 
The court did distinguish this case from one in which a search warrant was obtained after a drug-sniffing dog found the aromatic traces of narcotics in the air in front of an apartment. But the officers in the McNeil case, the court ruled, “went a step further and collected a sample from a door handle and lock that were physically attached to and indivisible from appellant’s home.”
 
The Minnesota Court of Appeals made the correct decision, voiding the conviction. As for McNeal, the authorities kept him in prison since his arrest more than two years ago, until the appellate court ruled in his favor. But at least the court recognized that swabbing any part of a home without a warrant is a violation of the Fourth Amendment.

​As the adoption of Automated License Plate Readers (ALPRs) creates ubiquitous surveillance of roads and highways, the uses and abuses of these systems – which capture and store license plate data – received fresh scrutiny by a Virginia court willing to question Supreme Court precedent.
 
In Norfolk, 172 such cameras were installed in 2023, generating data on just about every citizen’s movements available to Norfolk police and shared with law enforcement in neighboring jurisdictions. Enter Jayvon Antonio Bell, facing charges of robbery with a firearm. In addition to alleged incriminating statements, the key evidence against Bell includes photographs of his vehicle captured by Norfolk’s Flock ALPR system. Bell’s lawyers argued that the use of ALPR technology without a warrant violated Bell’s Fourth and Fourteenth Amendment rights, as well as several provisions of the Virginia Constitution.
 
The Norfolk Circuit Court, in a landmark decision, granted Bell's motion to suppress the evidence obtained from the license plate reader. This ruling, rooted in constitutional protections, weighs in on the side of privacy in the national debate over data from roadway surveillance. The court was persuaded that constant surveillance and data retention by ALPRs creates, in the words of Bell’s defense attorneys, a “dragnet over the entire city.”
 
This motion to dismiss evidence has the potential to reframe Fourth Amendment jurisprudence.
 
The Norfolk court considered the implications of the Supreme Court opinion Katz v. United States (1967), which established that what a person knowingly exposes to the public is not protected by the Fourth Amendment. In its decision, the court boldly noted that technological advancements since Katz have expanded law enforcement's capabilities, making it necessary to re-evaluate consequences for Fourth Amendment protections.
 
The court also referenced a Massachusetts case in which limited ALPR use was deemed not to violate the Fourth Amendment. The Norfolk Circuit Court’s approach was again pioneering. The court found that the extensive network of the 172 ALPR cameras in Norfolk, which far exceeded the limited surveillance in the Massachusetts case, posed unavoidable Fourth Amendment concerns.
 
The Norfolk court also expressed concern about the lack of training requirements for officers accessing the system, and the ease with which neighboring jurisdictions could share data. Additionally, the court highlighted vulnerabilities in ALPR technology, citing research showing that these systems are susceptible to error and hacking.
 
This is a bold decision by this state court, one that underscores the need for careful oversight and regulation of ALPR systems. As surveillance technology continues to evolve, this court’s decision to suppress evidence from a license plate reader is a sign that at least some judges are ready to draw a line around constitutional protections in the face of technological encroachment.

​In the early 1920s revenue agents staked out a South Carolina home the agents suspected was being used as a distribution center for moonshine whiskey. The revenue agents were in luck. They saw a visitor arrive to receive a bottle from someone inside the house. The agents moved in. The son of the home’s owner, a man named Hester, realized that he was about to be arrested and sprinted with the bottle to a nearby car, picked up a gallon jug, and ran into an open field.
 
One of the agents fired a shot into the air, prompting Hester to toss the jug, which shattered. Hester then threw the bottle in the open field. Officers found a large fragment of the broken jug and the discarded bottle both contained moonshine whiskey. This was solid proof that moonshine was being sold. But was it admissible as evidence? After all, the revenue agents did not have a warrant.
 
This case eventually wound its way to the Supreme Court. In 1924, a unanimous Court, presided over by Chief Justice (and former U.S. President) William Howard Taft, held that the Fourth Amendment did not apply to this evidence. Justice Oliver Wendell Holmes, writing the Court’s opinion, declared that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open field.” This principle was later extended to exclude any garbage that a person throws away from Fourth Amendment protections.
 
As strange as it may seem, this case about broken jugs and moonshine from the 1920s, Hester v. United States, provides the principle by which law enforcement officers freely help themselves to the information inside a discarded or lost cellphone – text messages, emails, bank records, phone calls, and images.
 
We reported a case in 2022 in which a Virginia man was convicted of crimes based on police inspection of a cellphone he had left behind in a restaurant. That man’s attorney, Brandon Boxler, told the Daily Press of Newport News that “cellphones are different. They have massive storage capabilities. A search of a cellphone involves a much deeper invasion of privacy. The depth and breadth of personal and private information they contain was unimaginable in 1924.”
 
In Riley v. California, the Supreme Court in 2018 upheld that a warrant was required to inspect the contents of a suspect’s cellphone. But the Hester rule still applies to discarded and lost phones. They are still subject to what Justice Holmes called the rules of the open field.
 
The American Civil Liberties Union, ACLU Oregon, the Electronic Privacy Information Center, and other civil liberties organizations are challenging this doctrine before the Ninth Circuit in Hunt v. United States. They told the court that it should not use the same reasoning that has historically applied to garbage left out for collection and items discarded in a hotel wastepaper basket.
 
“Our cell phones provide access to information comparable in quantity and breadth to what police might glean from a thorough search of a house,” ACLU said in a posted statement. “Unlike a house, though, a cell phone is relatively easy to lose. You carry it with you almost all the time. It can fall between seat cushions or slip out of a loose pocket. You might leave it at the check-out desk after making a purchase or forget it on the bus as you hasten to make your stop … It would be absurd to suggest that a person intends to open up their house for unrestrained searches by police whenever they drop their house key.”
 
Yet that is the government position on lost and discarded cellphones. PPSA applauds and supports the ACLU and its partners for taking a strong stand on cellphone privacy. The logic of extending special protections to cellphones, which the Supreme Court has held contain the “privacies of life,” is obvious. It is the government’s position that tastes like something cooked up in a still.