​The Federal Communications Commission on Monday fined four wireless carriers – Verizon, AT&T, Sprint, and T-Mobile – nearly $200 million for sharing the location data of customers, often in real-time, without their consent.
 
The case is an outgrowth of an investigation that began during the Trump Administration following public complaints that customers’ movements were being shared in real time with third-party companies. This is sensitive data. As FCC Chairwoman Jessica Rosenworcel said, consumers’ real-time location data reveals “where they go and who they are.” The carriers, FCC declared, attempted to offload “obligations to obtain customer consent onto downstream recipients of location information, which in many instances meant that no valid customer consent was obtained.”
 
The telecoms complain that the fines are excessive and ignore steps the companies have taken to cut off bad actors and improve customer privacy. But one remark from AT&T seemed to validate FCC’s charge of “offloading.” A spokesman told The Wall Street Journal that AT&T was being held responsible for another’s company’s violations. Verizon spokesman told The Journal that it had cut out a bad actor.
 
These spokesmen are pointing to the role of data aggregators who resell access to consumer location data and other information to a host of commercial services that want to know our daily movements. The spokesmen seem to betray a long-held industry attitude that when it sells data, it also transfers liability, including the need for customer consent. Companies of every sort that sell data, not just telecoms, will now need to study this case closely and determine whether they should tighten control over what happens to customer data after it is sold.
 
But there is one glaring omission in the FCC’s statement. It glides past the government’s own culpability in degrading consumer privacy. A dozen federal law enforcement and intelligence agencies, ranging from the FBI to the ATF, IRS, and Department of Homeland Security, routinely purchase and access Americans’ personal, digital information without bothering to secure a warrant. Concern over this practice is what led the House to recently pass The Fourth Amendment Is Not For Sale Act, which would require government agencies to obtain warrants before buying Americans’ location and other personal data from these same data brokers.
 
It is good to see the FCC looking out for consumers. But who is going to fine the FBI?

​We needed a little perspective before reporting on the historic showdown on the reauthorization of FISA Section 702 that ended on April 19 with a late-night Senate vote. The bottom line: The surveillance reform coalition finally made it to the legislative equivalent of the Super Bowl. We won’t be taking home any Super Bowl rings, but we made a lot of yardage and racked up impressive touchdowns.
 
For years, PPSA has coordinated with a wide array of leading civil liberties organizations across the ideological spectrum toward that key moment. We worked hard and enjoyed the support of our followers in flooding Congress with calls and emails supporting privacy and surveillance reform.
 
So what was the result? We failed to get a warrant requirement for Section 702 data but came within one vote of winning it in the House. There was a lot of good news and new reforms that should not be overlooked. And where the news was bad, there are silver linings that gleam.

• Best of all – and the intelligence community hates this – we succeeded in reducing the deadline for the next reauthorization of Section 702 from five years to two. We also got the date of reauthorization moved from the end of the year, when legislative priorities tend to get lost in the press of late business, to April in even (election) years.

 

• An important reform amendment from Rep. Chip Roy (R-TX) passed. The FBI will now be under a microscope, with quarterly reports to Congress on the number of time the FBI searches, “or queries,” the communications of Americans in Section 702 databases. It also allows the leaders of both Houses of Congress and the House and Senate Judiciary and Intelligence Committees to attend hearings of the secret FISA Court.

 

• The worst event of this round was that the “Make Everyone a Spy” amendment passed. Signed into law by President Biden, this measure allows the government to force a wide range of small businesses to help the NSA in its spying, and it gags them to prevent them from revealing it. This measure passed only after a pinkie promise from Attorney General Merrick Garland to enforce it narrowly. Sen. Mark Warner, Chairman of the Senate Select Committee on Intelligence, said he would support revising the bill’s vague language. Our coalition will closely watch the Department of Justice and take up Sen. Warner’s promise to tighten the language of this amendment. We will hold them to account.

 

• Thanks to an amendment offered by Rep. Ben Cline (R-VA), we permanently ended “abouts” collection – the practice of surveilling Americans who are merely mentioned in a communication.

 

• We secured dozens of reforms of the FISA process for both Section 702 and Title I surveillance, including:

 

• The FBI can no longer rely on press reports or political opposition research to seek surveillance orders from the secret FISA Court.

 

• The numbers of FBI personnel who can make Section 702 queries has been massively reduced, with independent audits of every U.S. person query.

 

• FBI agents who lie to the FISA Court will be fired or suspended without pay. Leaking a secret FISA application will result in 10 years in prison and or a $250,000 fine. FBI personnel who lie to the FISA Court – as FBI lawyer Kevin Clinesmith did when he altered a document about Carter Page and submitted it as evidence – will face 10 years in prison and/or a $250,000 fine.

 

• Soon after the Section 702 debate, the House passed The Fourth Amendment Is Not For Sale Act on a strong bipartisan 219-199 vote. This bill requires the FBI and other federal agencies to obtain a warrant before they can purchase Americans’ personal data, including internet records and location histories. Passage in the House gives a mark of validation to this bill, making it easier for the bill’s Senate champions to enlist their colleagues to support it.

 
We come out of this legislative fracas bloodied but energized. We put together a durable left-right coalition in which House Judiciary Committee Chairman Jim Jordan and Ranking Member Jerry Nadler, as well as the heads of the Freedom and Progressive caucuses, who worked side-by-side. For the first time, our surveillance coalition had the intelligence community and their champions on the run. We lost the warrant provision for Section 702 only by a tie vote. Had every House Member who supported our position been in attendance, we would have won. This bodes well for the next time Section 702 reauthorization comes up.
 
We will be ready.
 
Let’s not forget that a recent bipartisan YouGov poll shows that 80 percent of Americans support warrant requirements. We sense a gathering of momentum – and we look forward to preparing for the next big round in April 2026.

​A recent House hearing on the protection of journalistic sources veered into startling territory.
 
As expected, celebrated investigative journalist Catherine Herridge spoke movingly about her facing potential fines of up to $800 a day and a possible lengthy jail sentence as she faces a contempt charge for refusing to reveal a source in court. Herridge said one of her children asked, “if I would go to jail, if we would lose our house, and if we would lose our family savings to protect my reporting source.”
 
Herridge later said that CBS News’ seizure of her journalistic notes after laying her off felt like a form of “journalistic rape.”
 
Witnesses and most members of the House Judiciary subcommittee on the Constitution and Limited Government agreed that the Senate needs to act on the recent passage of the bipartisan Protect Reporters from Exploitative State Spying (PRESS) Act. This bill would prevent federal prosecutors from forcing journalists to burn their sources, as well to bar officials from surveilling phone and email providers to find out who is talking to journalists.
 
Sharyl Attkisson, like Herridge a former CBS News investigative reporter, brought a dose of reality to the proceeding, noting that passing the PRESS Act is just the start of what is needed to protect a free press.
 
“Our intelligence agencies have been working hand in hand with the telecommunications firms for decades, with billions of dollars in dark contracts and secretive arrangements,” Attkisson said. “They don’t need to ask the telecommunications firms for permission to access journalists’ records, or those of Congress or regular citizens.”
 
Attkisson recounted that 11 years ago CBS News officially announced that Attkisson’s work computer had been targeted by an unauthorized intrusion.
 
“Subsequent forensics unearthed government-controlled IP addresses used in the intrusions, and proved that not only did the guilty parties monitor my work in real time, they also accessed my Fast and Furious files, got into the larger CBS system, planted classified documents deep in my operating system, and were able to listen in on conversations by activating Skype audio,” Attkisson said.
 
If true, why would the federal government plant classified documents in the operating system of a news organization unless it planned to frame journalists for a crime?
 
Attkisson went to court, but a journalist – or any citizen – has a high hill to climb to pursue an action against the federal government. Attkisson spoke of the many challenges in pursuing a lawsuit against the Department of Justice.
 
“I’ve learned that wrongdoers in the federal government have their own shield laws that protect them from accountability,” Attkisson said. “Government officials have broad immunity from lawsuits like mine under a law that I don’t believe was intended to protect criminal acts and wrongdoing but has been twisted into that very purpose.
 
“The forensic proof and admission of the government’s involvement isn’t enough,” she said. “The courts require the person who was spied on to somehow produce all the evidence of who did what – prior to getting discovery. But discovery is needed to get more evidence. It’s a vicious loop that ensures many plaintiffs can’t progress their case even with solid proof of the offense.”
 
Worse, Attkisson testified that a journalist “who was spied on has to get permission from the government agencies involved in order to question the guilty agents or those with information, or to access documents. It’s like telling an assault victim that he has to somehow get the attacker’s permission in order to obtain evidence. Obviously, the attacker simply says no. So does the government.”
 
This hearing demonstrated how important Fourth Amendment protections against unreasonable searches and seizures are to the First Amendment’s guarantee of freedom of the press. If Attkisson’s claims are true, the government explicitly violated a number of laws, not the least of which is mishandling classified documents and various cybercrimes. And it relies on specious immunities and privileges to avoid any accountability for its apparent crimes.
 
Two proposed laws are a good way to start reining in such government misconduct. The first is the PRESS Act, which would protect journalists’ sources against being pressured by prosecutors in federal court to reveal their sources. The second proposed law is the Fourth Amendment Is Not For Sale Act, which passed the House last week. This bill would require the government to get a warrant before it can inspect our personal, digital information sold by data brokers. And, of course, these and other laws limiting government misconduct need genuine remedies and consequences for misconduct, not the mirage of remedies enfeebled by improper immunities.

​The House voted 219-199 to pass the Fourth Amendment Is Not For Sale Act, which requires the FBI and other federal agencies to obtain a warrant before they can purchase Americans’ personal data, including internet records and location histories.
 
“Every American should celebrate this strong victory in the House of Representatives today,” said Bob Goodlatte, former House Judiciary Chairman and PPSA Senior Policy Advisor. “We commend the House for stepping up to protect Americans from a government that asserts a right to purchase the details of our daily lives from shady data brokers. This vote serves notice on the government that a new day is dawning. It is time for the intelligence community to respect the will of the American people and the authority of the Fourth Amendment.”
 
Federal agencies, from the FBI to the IRS, ATF, and the Departments of Defense and Homeland Security, for years have purchased Americans’ sensitive, personal information scraped from apps and sold by data brokers. This practice is authorized by no specific statute, nor conducted under any judicial oversight.
 
“The Fourth Amendment Is Not For Sale Act puts an end to the peddling of Americans’ private lives to the government,” said Gene Schaerr, general counsel of PPSA. “Eighty percent of the American people in a recent YouGov poll say they believe warrants are absolutely necessary before their digital lives can be reviewed by the government. It is now the duty of the U.S. Senate to finish the job and express the will of the people.”
 
PPSA is grateful to Rep. Warren Davidson, House Judiciary Chairman Jim Jordan, Ranking Member Jerry Nadler, Reps. Andy Biggs, Rep. Pramila Jayapal, Rep. Zoe Lofgren, Rep. Thomas Massie, Rep. Sara Jacobs, and many others who worked to persuade Members to pass this bill in such a strong bipartisan victory.
 
Much of the credit also goes to PPSA’s followers, thousands of whom called and emailed Members of the House at a critical time.
 
“We will need you again when the Fourth Amendment Is Not For Sale Act goes to the Senate,” Schaerr said. “Stay tuned.”

Our digital traces can be put together to tell the stories of our lives. They reveal our financial and health status, our romantic activities, our religious beliefs and practices, and our political beliefs and activities.
 
Our location histories are no less personal. Data from the apps on our phone record where we go and with whom we meet. Taken all together, our data creates a portrait of our lives that is more intimate than a diary.
 
Incredibly, such information is, in turn, sold by data brokers to the FBI, IRS, the Drug Enforcement Administration, the Department of Defense, the Department of Homeland Security, and other federal agencies to freely access. The Constitution’s Fourth Amendment forbids such unreasonable searches and seizures. Yet federal agencies maintain they have the right to collect and examine our personal information – without warrants.
 
A recent report from the Office of the Director of National Intelligence shows that:

• Federal agencies collect bankruptcy information, employment history and income, credit histories, consumer purchase histories, and consumer interests.

 

• Agencies acquire records about ethnicities, possible criminal records, voting registration, travel records, and attorney-client information.

 

• Agencies purchase information about our medical and mental health, religious activities, browsing histories, and library records, communications with friends, expressions of political views, our associates, and details about our sex lives.

 

• The authors of the report frankly admit that this information “could be used, for example, to identify every person who attended a protest or rally based on their smartphone location or ad-tracking records.”

 

• Such information could be used to “facilitate blackmail, stalking, harassment, and public shaming.” 

 
The American people are alarmed. Eighty percent of Americans in a recent YouGov poll say Congress should require government agencies to obtain a warrant before purchasing location information, internet records, and other sensitive data about people in the U.S. from data brokers.
 
The Fourth Amendment Is Not For Sale Act now up for a vote in the House would prohibit law enforcement and intelligence agencies from purchasing certain sensitive information from third-party sellers, including geolocation information and communications-related information that is protected under the Electronic Communications Privacy Act, and information obtained from illicit data scraping. This bill balances Americans’ civil liberties with national security, giving law enforcement and intelligence agencies the ability to access this information with a warrant, court order, or subpoena.
 
Call your U.S. House Representative and say:
 
“Please protect my privacy by voting for the Fourth Amendment Is Not For Sale Act.”

Forbes reports that federal authorities were granted a court order to require Google to hand over the names, addresses, phone numbers, and user activities of internet surfers who were among the more than 30,000 viewers of a post. The government also obtained access to the IP addresses of people who weren’t logged onto the targeted account but did view its video.
 
The post in question is suspected of being used to promote the sale of bitcoin for cash, which would be a violation of money-laundering rules. The government likely had good reason to investigate that post. But did it have to track everyone who came into contact with it?
 
This is a prime example of the government’s street-sweeper shotgun approach to surveillance. We saw this when law enforcement in Virginia tracked the location histories of everyone in the vicinity of a robbery. A state judge later found that search meant that everyone in the area, from restaurant patrons to residents of a retirement home, had “effectively been tailed.”
 
We saw the government shotgun approach when the FBI secured the records of everyone in the Washington, D.C., area who used their debit or credit cards to make Bank of America ATM withdrawals between Jan. 5 and Jan. 7, 2021.
 
We also saw it when the FBI, searching for possible foreign influence in a congressional campaign, used FISA Section 702 data – meant to surveil foreign threats on foreign soil – to pull the data of 19,000 political donors.
 
Surfing the web is not inherently suspicious. What we watch online is highly personal, potentially revealing all manner of social, romantic, political, and religious beliefs and activities. The Founders had such dragnet-style searches precisely in mind when they crafted the Fourth Amendment. Simply watching a publicly posted video is not by itself probable cause for search. It should not compromise one’s Fourth Amendment rights.

Byron Tau – journalist and author of Means of Control, How the Hidden Alliance of Tech and Government Is Creating a New American Surveillance State – discusses the details of his investigative reporting with Liza Goitein,  senior director of the Brennan Center for Justice's Liberty & National Security Program, and Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability. 

Byron explains what he has learned about the shadowy world of government surveillance, including how federal agencies purchase Americans’ most personal and sensitive information from shadowy data brokers. He then asks Liza and Gene about reform proposals now before Congress in the FISA Section 702 debate, and how they would rein in these practices. ​

​The reform coalition on Capitol Hill remains determined to add strong amendments to Section 702 of the Foreign Intelligence Surveillance Act (FISA). But will they get the chance before an April 19th deadline for FISA Section 702’s reauthorization?
 
There are several possible scenarios as this deadline closes. One of them might be a vote on the newly introduced “Reforming Intelligence and Securing America” (RISA) Act. This bill is a good-faith effort to represent the narrow band of changes that the pro-reform House Judiciary Committee and the status quo-minded House Permanent Select Committee on Intelligence could agree upon.
 
But is it enough? RISA is deeply lacking because it leaves out two key reforms.
 

• It excludes the principal reform of the House Judiciary Committee’s Protect Liberty and End Warrantless Surveillance Act – leaving intact the ability of the FBI and other agencies to continue to use Section 702 data to perform baseless searches on Americans. These searches have been performed on Members of Congress, 19,000 donors to a congressional campaign, and tens of thousands of protestors on the left and right. Reformers want a warrant before agencies can collect Americans’ communications, as the Fourth Amendment requires.

 

• The bill does not close another loophole through which the FBI, IRS, Department of Homeland Security, and other federal agencies purchase and warrantlessly access the personal information of Americans. This data broker loophole gives the government access to Americans’ health, financial, romantic, religious, and political lives. If Congress cannot reform this practice with a warrant requirement, most other reforms will be meaningless.

 
The bill does include a role for amici curiae, specialists in civil liberties who would act as advisors to the secret FISA court. RISA, however, would limit the issues these advisors could address, well short of the intent of the Senate when it voted 77-19 in 2020 to approve the robust amici provisions of the Lee-Leahy amendment.
 
For all these reasons, reformers should see RISA as a floor, not as a ceiling, as the Section 702 showdown approaches. The best solution to the current impasse is to stop denying Members of Congress the opportunity for a straight up-or-down vote on reform amendments.

​The contest between surveillance reformers and defenders of domestic surveillance is set to come to a showdown in the second week of April. Speaker Mike Johnson told Politico that his “current plan is to run FISA as a standalone the week after Easter.”
 
Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows federal agencies to gather foreign intelligence but has been used by the government to conduct domestic surveillance on millions of Americans in recent years. Its reauthorization, with or without reforms, will almost certainly come to a vote before its expiration on April 19.
 
The big question is whether the House will be allowed vote on two reform amendments. These amendments would impose warrant requirements before federal agencies could inspect the communications of Americans caught up in the global trawl of intelligence agencies, as well as for the sensitive, personal information of Americans scraped by apps and sold by data brokers to the government. These amendments are backed by strong bipartisan support that spans across the aisle and includes leaders of the Freedom and Progressive caucuses.
 
The odds of votes on reform amendment on the House floor increased with renewed pressure for reform coming from the Senate. Sens. Dick Durbin (D-IL) and Mike Lee (R-UT) introduced the Security and Freedom Enhancement (SAFE) Act, which includes the prime provisions of House reformers, with a few pragmatic concessions to the needs of intelligence practitioners.
 
The route to this moment has been long and tortuous. The House reauthorization bill, and a chance to vote on the two warrant amendments, was pulled at the request of the intelligence community in February when it became clear these measures likely had majority support. With powerful bipartisan support for reform now coming from two respected lawmakers on the Senate Judiciary Committee, it will be hard to stiff-arm reformers again in either chamber.
That doesn’t mean it cannot happen. Expect the champions of the surveillance status quo to come up with new legislative tricks and scares (remember the Putin space nuke debacle?) before April’s vote. PPSA will be tracking every development in this struggle. Registering your determination for surveillance reform now will help maintain the “current plan” for reauthorization, debate, and vote on reform amendments.

​Car companies are collecting massive amounts of data about your driving – how fast you accelerate, how hard you brake, and any time you speed. These data are then analyzed by LexisNexis or another data broker to be parsed and sold to insurance companies. As a result, many drivers with clean records are surprised with sudden, large increases in their car insurance payments.
 
Kashmir Hill of The New York Times reports the case of a Seattle man whose insurance rates skyrocketed, only to discover that this was the result of LexisNexis compiling hundreds of pages on his driving habits.
 
This is yet another feature of the dark side of the internet of things, the always-on, connected world we live in. For drivers, internet-enabled services like navigation, roadside assistance, and car apps are also 24-7 spies on our driving habits. We consent to this, Hill reports, “in fine print and murky privacy policies that few read.” One researcher at Mozilla told Hill that it is “impossible for consumers to try and understand” policies chocked full of legalese.
 
The good news is that technology can make data gathering on our driving habits as transparent as we are to car and insurance companies. Hill advises:

• See the data your car is capable of collecting with this tool: https://vehicleprivacyreport.com/.

 

• Request your LexisNexis report at: https://consumer.risk.lexisnexis.com/consumer​

 

• Or request your report from another data broker, Verisk, at: https://fcra.verisk.com/#

 
What you cannot do, however, is file a report with the FBI, IRS, the Department of Homeland Security, or the Pentagon to see if government agencies are also purchasing your private driving data. Given that these federal agencies purchase nearly every electron of our personal data, scraped from apps and sold by data brokers, they may well have at their fingertips the ability to know what kind of driver you are. Unlike the private snoops, these federal agencies are also collecting your location histories, where you go, and by inference, who you meet for personal, religious, political, or other reasons.
 
All this information about us can be accessed and reviewed at will by our government, no warrant needed.
 
That is all the more reason to support the inclusion of the principles of the Fourth Amendment Is Not for Sale Act in the reauthorization of the FISA Section 702 surveillance policy.

While Congress debates adding reforms to FISA Section 702 that would curtail the sale of Americans’ private, sensitive digital information to federal agencies, the Federal Trade Commission is already cracking down on companies that sell data, including their sales of “location data to government contractors for national security purposes.”
 
The FTC’s words follow serious action.
 
In January, the FTC announced proposed settlements with two data aggregators, X-Mode Social and InMarket, for collecting consumers’ precise location data scraped from mobile apps. X-Mode, which can assimilate 10 billion location data points and link them to timestamps and unique persistent identifiers, was targeted by the FTC for selling location data to private government contractors without consumers’ consent.
 
In February, the FTC announced a proposed settlement with Avast, a security software company, that sold “consumers’ granular and re-identifiable browsing information” embedded in Avast’s antivirus software and browsing extensions.
 
What is the legal basis for the FTC’s action? The agency seems to be relying on Section 5 of the Federal Trade Commission Act, which grants the FTC power to investigate and prevent deceptive trade practices. In the case of X-Mode, the FTC’s proposed complaint highlight’s X-Mode’s statement that their location data would be used solely for “ad personalization and location-based analytics.” The FTC alleges X-Mode failed to inform consumers that X-Mode “also sold their location data to government contractors for national security purposes.”
 
The FTC’s evolving doctrine seems even more expansive, weighing the stated purpose of data collection and handling against its actual use. In a recent blog, the FTC declares:
 
“Helping people prepare their taxes does not mean tax preparation services can use a person’s information to advertise, sell, or promote products or services. Similarly, offering people a flashlight app does not mean app developers can collect, use, store, and share people’s precise geolocation information. The law and the FTC have long recognized that a need to handle a person’s information to provide them a requested product or service does not mean that companies are free to collect, keep, use, or share that’s person’s information for any other purpose – like marketing, profiling, or background screening.”
 
What is at stake for consumers? “Browsing and location data paint an intimate picture of a person’s life, including their religious affiliations, health and medical conditions, financial status, and sexual orientation.”
 
If these cases go to court, the tech industry will argue that consumers don’t sign away rights to their private information when they sign up for tax preparation – but we all do that routinely when we accept the terms and conditions of our apps and favorite social media platforms. The FTC’s logic points to the common understanding that our data is collected for the purpose of selling us an ad, not handing over our private information to the FBI, IRS, and other federal agencies.
 
The FTC is edging into the arena of the Fourth Amendment Is Not for Sale Act, which targets government purchases and warrantless inspection of Americans’ personal data. The FTC’s complaints are, for the moment, based on legal theory untested by courts. If Congress attaches similar reforms to the reauthorization of FISA Section 702, it would be a clear and hard to reverse protection of Americans’ privacy and constitutional rights.

​Ken Blackwell, former ambassador and mayor of Cincinnati, has a conservative resume second to none. He is now a senior fellow of the Family Research Council and chairman of the Conservative Action Project, which organizes elected conservative leaders to act in unison on common goals. So when Blackwell writes an open letter in Breitbart to Speaker Mike Johnson warning him not to try to reauthorize FISA Section 702 in a spending bill – which would terminate all debate about reforms to this surveillance authority – you can be sure that Blackwell was heard.
 
“The number of FISA searches has skyrocketed with literally hundreds of thousands of warrantless searches per year – many of which involve Americans,” Blackwell wrote. “Even one abuse of a citizen’s constitutional rights must not be tolerated. When that number climbs into the thousands, Congress must step in.”
 
What makes Blackwell’s appeal to Speaker Johnson unique is he went beyond including the reform efforts from conservative stalwarts such as House Judiciary Committee Chairman Jim Jordan and Rep. Andy Biggs of the Freedom Caucus. Blackwell also cited the support from the committee’s Ranking Member, Rep. Jerry Nadler, and Rep. Pramila Jayapal, who heads the House Progressive Caucus. Blackwell wrote:
 
“Liberal groups like the ACLU support reforming FISA, joining forces with conservatives civil rights groups. This reflects a consensus almost unseen on so many other important issues of our day. Speaker Johnson needs to take note of that as he faces pressure from some in the intelligence community and their overseers in Congress, who are calling for reauthorizing this controversial law without major reforms and putting that reauthorization in one of the spending bills that will work its way through Congress this month.”
 
That is sound advice for all Congressional leaders on Section 702, whichever side of the aisle they are on. In December, members of this left-right coalition joined together to pass reform measures out of the House Judiciary Committee by an overwhelming margin of 35 to 2. This reform coalition is wide-ranging, its commitment is deep, and it is not going to allow a legislative maneuver to deny Members their right to a debate.

​PPSA, in concert with a coalition of major civil liberties groups from the left, right, and center, is appealing to Members of Congress “to oppose any legislative end-run that allows the FBI and other intelligence agencies to continue to spy on Americans without giving Congress the opportunity to vote on reforms.”
 
The word from Capitol Hill is that the intelligence community is now lobbying to attach a reauthorization of FISA Section 702 to a “must-pass” spending measure. Such a maneuver would cement the intelligence community’s strategy of denying Members of Congress a chance to have a debate and to vote on reforms to this surveillance authority.
 
Our letter, which includes Americans for Prosperity, the Brennan Center for Justice, Demand Progress, FreedomWorks, and the Wikimedia Foundation, warns Congress:
 
“The Fourth Amendment will become a constitutional dead letter if the government can continue to track our every movement, communications, where we worship, our financial and health issues, what we believe, and our political activity without warrants.”
 
Our letter concludes: “Congress must be able to vote on reforms rather than being faced with a ‘take-it-or-leave-it’ choice between funding the government and protecting Americans’ liberties.”
 
Our FISA Reform Coalition letter ended by urging Congress to stand up for Americans’ privacy, the Constitution, and against the insulting premise that Members of Congress should not be allowed to vote on surveillance reform.

Tell your Representative in the U.S. House that you want the FBI and other federal intelligence agencies to stop spying on you and your family.
 
In recent years, the FBI and other agencies have freely dipped into Americans’ private communications and data caught up in foreign surveillance. The FBI, IRS, Drug Enforcement Administration, Pentagon, and other agencies also track your every move by purchasing your geolocation data and other sensitive, personal information scraped from the apps on your cellphone and sold to the government by shady data brokers.
 
Your personal information from these sources tells the FBI where you’ve been and where you’re going, where you worship, who you date or have fun with, and all about your health, financial information, personal beliefs, and political activities. Do you trust this government to have so much power over your life?
 
Consider that the FBI has already been caught dipping into Americans’ personal communications in recent years by the millions. The government has followed our political and religious activities for years without warrants, spied on 19,000 donors to a Congressional campaign, and spied on a state senator, a state judge, a U.S. Congressman, and 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.
 
For now, champions of the intelligence community on Capitol Hill have used a legislative maneuver to prevent a vote that would require the government to get warrants before looking at your private information. The FBI and their friends know that if these amendments get a fair vote on the House floor, they will lose. So they’ve upended the whole process.
 
This is dirty pool. The lack of a vote denies your Member of Congress the right to debate and vote for reform. Unchallenged, this maneuver ensures that the FBI and other agencies will continue to ignore the Fourth Amendment to the U.S. Constitution, which clearly mandates that the government go to a court and obtain a warrant before your personal communications can be inspected.
 
So tell your U.S. House Representative to demand that the FBI and other federal agencies stop accessing your private, personal communications and data without a warrant.
 
Tell your U.S. House Representative:
 
“Stop the FBI from spying on innocent Americans. Please fight for a vote to reform FISA’s Section 702 with warrant requirements, both for Section 702 data and for our sensitive, personal information sold to the government by data brokers.”

When we covered a Michigan couple suing their local government for sending a drone over their property to prove a zoning violation, we asked if there are any legal limits to aerial surveillance of your backyard.
 
In this case before the Michigan Supreme Court, Maxon v. Long Lake Township, counsel for the local government said that the right to inspect our homes goes all the way to space. He described the imaging capability of Google Earth satellites, asking: “If you want to know whether it’s 50 feet from this house to this barn, or 100 feet from this house to this barn, you do that right on the Google satellite imagery. And so given the reality of the world we live in, how can there be a reasonable expectation of privacy in aerial observations of property?”
 
One justice reacted to the assertion that if Google Earth could map a backyard as closely and intimately as a drone, that would be a search. “Technology is rapidly changing,” the justice responded. “I don’t think it is hard to predict that eventually Google Earth will have that capacity.”
 
Now William J. Broad of The New York Times reports that we’re well beyond Google Earth’s imaging of barns and houses. Try dinner plates and forks.
 
Albedo Space of Denver is making a fleet of 24 small, low orbit satellites that will use imagery to guide responders in disasters, such as wildfires and other public emergencies. It will improve the current commercial standard of satellite imaging from a focal length of about a foot to about four inches. A former CIA official with decades of satellite experience told Broad that it will be a “big deal” when people realize that anything they are trying to hide in their backyards will be visible. Skinny-dipping in the pool will only be for the supremely confident.
 
To his credit, Albedo chief Topher Haddad said, “we’re acutely aware of the privacy implications,” promising that management will be selective in their choice of clients on a case-by-case basis.
 
It is good to know that Albedo likely won’t be using its technology to catch zone violators or backyard sunbathers. We’ve seen, however, that what is cutting-edge technology today will be standard tomorrow. This is just one more way in which the velocity of technology is outpacing our ability to adjust.
 
There is, of course, one effective response. We can reject the Michigan town’s counsel argument who said, essentially, that privacy’s dead and we should just get over it. Courts and Congress should define orbital and aerial surveillance as searches requiring a probable cause warrant, as defined by the Fourth Amendment of the U.S. Constitution, before our homes and backyards can be invaded by eyes from above.
 
The greatest danger to privacy is not that Albedo will allow government snoops to watch us in real time. The real threat is a satellite company’s ability to collect private images by the tens of millions. Such a database could then be sold to the government just as so much commercial digital information is now being sold to the government by data brokers.
 
This is all the more reason for Congress to import the privacy-protecting warrant provisions of the Fourth Amendment Is Not For Sale Act into the reauthorization of FISA Section 702.

​Just in time for the Section 702 debate, Emile Ayoub and Elizabeth Goitein of the Brennan Center for Justice have written a concise and easy to understand primer on what the data broker loophole is about, why it is so important, and what Congress can do about it.
 
These authors note that in this age of “surveillance capitalism” – with a $250 billion market for commercial online data – brokers are compiling “exhaustive dossiers” that “reveal the most intimate details of our lives, our movements, habits, associations, health conditions, and ideologies.”
 
This happens because data brokers “pay app developers to install code that siphons users’ data, including location information. They use cookies or other web trackers to capture online activity. They scrape from information public-facing sites, including social media platforms, often in violation of those platforms’ terms of service. They also collect information from public records and purchase data from a wide range of companies that collect and maintain personal information, including app developers, internet service providers, car manufacturers, advertisers, utility companies, supermarkets, and other data brokers.”
 
Armed with all this information, data brokers can easily “reidentify” individuals from supposedly “anonymized” data. This information is then sold to the FBI, IRS, the Drug Enforcement Administration, the Department of Defense, the Department of Homeland Security, and state and local law enforcement.
 
Ayoub and Goitein examine how government lawyers employ legal sophistry to evade a U.S. Supreme Court ruling against the collection of location data, as well as the plain meaning of the U.S. Constitution, to access Americans’ most personal and sensitive information without a warrant. They describe the merits of the Fourth Amendment Is Not For Sale Act, and how it would shut down “illegitimately obtained information” from companies that scrape photos and data from social media platforms.
 
The latter point is most important. Reformers in the House are working hard to amend FISA Section 702 with provisions from the Fourth Amendment Is Not For Sale Act, to require the government to obtain warrants before inspecting our commercially acquired data. While the push is on to require warrants for Americans’ data picked up along with international surveillance, the job will be decidedly incomplete if the government can get around the warrant requirement by simply buying our data.
 
Ayoub and Goitein conclude that Congress must “prohibit government agencies from sidestepping the Fourth Amendment.” Read this paper and go here to call your House Member and let them know that you demand warrants before the government can access our sensitive, personal information.

​From Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability:
 
“For months, the House Intelligence Committee warned that failure to reauthorize Section 702 would subject the American homeland to unprecedented danger. 
 
“Now the Intelligence Committee has caused the bill to be pulled rather than allow the House to work its will and vote on a few reasonable and important reform amendments. 
 
“They are now willing to endanger Section 702 in its entirety unless they get everything they want.
 
“Think about it – the intelligence community and deep state are so determined to maintain the ability to spy on Americans that they are willing to put at risk the very authority they claim they need to protect us against foreign threats.”

The word from Capitol Hill is that Speaker Mike Johnson is scheduling a likely House vote on the reauthorization of FISA’s Section 702 this week. We are told that proponents and opponents of surveillance reform will each have an opportunity to vote on amendments to this statute.
 
It is hard to overstate how important this upcoming vote is for our privacy and the protection of a free society under the law. The outcome may embed warrant requirements in this authority, or it may greatly expand the surveillance powers of the government over the American people.
 
Section 702 enables the U.S. intelligence community to continue to keep a watchful eye on spies, terrorists, and other foreign threats to the American homeland. Every reasonable person wants that, which is why Congress enacted this authority to allow the government to surveil foreign threats in foreign lands. Section 702 authority was never intended to become what it has become: a way to conduct massive domestic surveillance of the American people.
 
Government agencies – with the FBI in the lead – have used this powerful, invasive authority to exploit a backdoor search loophole for millions of warrantless searches of Americans’ data in recent years. In 2021, the secret Foreign Intelligence Surveillance Court revealed that such backdoor searches are used by the FBI to pursue purely domestic crimes. Since then, declassified court opinions and compliance reports reveal that the FBI used Section 702 to examine the data of a House Member, a U.S. Senator, a state judge, journalists, political commentators, 19,000 donors to a political campaign, and to conduct baseless searches of protesters on both the left and the right. NSA agents have used it to investigate prospective and possible romantic partners on dating apps.
 
Any reauthorization of Section 702 must include warrants – with reasonable exceptions for emergency circumstances – before the data of Americans collected under Section 702 or any other search can be queried, as required by the U.S. Constitution.
 
This warrant requirement must include the searching of commercially acquired information, as well as data from Americans’ communications incidentally caught up in the global communications net of Section 702.
 
The FBI, IRS, Department of Homeland Security, the Pentagon, and other agencies routinely buy Americans’ most personal, sensitive information, scraped from our apps and sold to the government by data brokers. This practice is not authorized by any statute, or subject to any judicial review. Including a warrant requirement for commercially acquired information as well as Section 702 data is critical, otherwise the closing of the backdoor search loophole will merely be replaced by the data broker loophole.
 
If the House declines to impose warrants for domestic surveillance, expect many politically targeted groups to have their privacy and constitutional rights compromised. We cannot miss the best chance we’ll have in a generation to protect the Constitution and what remains of Americans’ privacy.
 
Copy and paste the message below and click here to find your U.S. Representative and deliver it:
 
“Please stand up for my privacy and the Fourth Amendment to the U.S. Constitution: Vote to reform FISA’s Section 702 with warrant requirements, both for Section 702 data and for our sensitive, personal information sold to government agencies by data brokers.”

​The American Civil Liberties Union, its Northern California chapter, and the Brennan Center, are calling on the Federal Trade Commission to investigate whether Meta and X have broken commitments they made to protect customers from data brokers and government surveillance.
 
This concern goes back to 2016 when it came to light that Facebook and Twitter helped police target Black Lives Matter activists. As a result of protests by the ACLU of Northern California and other advocacy groups, both companies promised to strengthen their anti-surveillance policies and cut off access to social media surveillance companies. Their privacy promises even became points of pride in these companies’ advertising.
 
Now ACLU and Brennan say they have uncovered commercial documents from data brokers that seem to contradict these promises. They point to a host of data companies that publicly claim they have access to data from Meta and/or X, selling customers’ information to police and other government agencies.
 
ACLU writes: “These materials suggest that law enforcement agencies are getting deep access to social media companies’ stores of data about people as they go about their daily lives.”
 
While this case emerged from left-leaning organizations and concerns, organizations and people on the right have just as much reason for concern. The posts we make, what we say, who our friends are, can be very sensitive and personal information.
 
“Something’s not right,” ACLU writes. “If these companies can really do all that they advertise, the FTC needs to figure out how.”
 
At this point, we simply don’t know with certainty which, if any, social media platforms are permitting data brokers to obtain personal information from their platforms – information that can then be sold to the government. Regardless of the answer to that question, PPSA suggests that a thorough way to short-circuit any extraction of Americans’ most sensitive and personal information from data sales (at least at the federal level) would be to pass the strongly bipartisan Protect Liberty and End Warrantless Surveillance Act. This measure would force federal government agencies to obtain a warrant – as they should anyway under the Fourth Amendment – to access the data of an American citizen.

​The House Judiciary Committee today passed the Protect Liberty and End Warrantless Surveillance Act with an overwhelmingly bipartisan vote.
 
Unlike competing proposals – such as the FISA Reform and Reauthorization Act now before the House Permanent Select Committee on Intelligence (HPSCI) – the Protect Liberty Act mandates a robust warrant requirement for U.S. person searches under FISA Section 702. It curtails the common government surveillance technique of “reverse targeting” – using FISA’s Section 702 authority to work backwards to target Americans without a warrant.
 
The Protect Liberty Act adopts language from the Fourth Amendment Is Not for Sale Act. This language closes the loophole that allows government agencies to buy access to Americans’ most sensitive and personal information scraped from apps and sold by data brokers.
 
The Protect Liberty Act also requires amicus participation in FISA cases to protect the public and the Constitution, ensuring that the secret FISA Court will hear from civil liberties experts as well as government attorneys.
 
And the bill would require FBI agents seeking search orders to testify to the accuracy of their reasons for bringing the search.
 
In contrast, the competing FISA Reform and Reauthorization Act emerging from HPSCI has a weak warrant requirement that would not stop the widespread practice of backdoor searches of Americans’ information. And it does not address the outrageous practice of federal agencies buying up Americans’ most sensitive and private information from data brokers.
 
The contrast between these two bills could not be starker. Ranking Member Jerry Nadler (D-NY) said the Protect Liberty Act is the only one of these two bills “that can pass on a floor vote.”
 
House Judiciary Chairman Jim Jordan says he expects a floor vote next week.
 
PPSA applauds the committee for passing this bill with such strong, bipartisan support. We are grateful to committee Chairman Jim Jordan (R-OH), Ranking Member Jerry Nadler (D-NY), Rep. Andy Biggs (R-AZ) (who introduced the bill), Rep. Sara Jacobs (D-CA), Rep. Russell Fry (R-SC), Rep. Ted Lieu (D-CA), Rep. Eli Crane (R-AZ), as well as leaders of the House Freedom Caucus and Progressive Caucus, Reps Warren Davidson (R-OH) and Rep. Pramila Jayapal (D-WA).
 
PPSA is also grateful to all the Members of the House Judiciary Committee who offered helpful amendments to strengthen the bill.
 
PPSA will follow this fast-moving story.

When FBI Director Christopher Wray came under heated questioning during his testimony Tuesday before the Senate Homeland Security and Governmental Affairs Committee, he let slip a remark likely to haunt him for the rest of the debate over proposed reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA).
 
Director Wray said, “With everything going on in the world, imagine if a foreign terrorist overseas directs an operative to carry out an attack here on our own backyard, but we’re not able to disrupt it because the FBI’s authorities have been so watered down.”
 
By “watered down” Wray meant reformers’ proposal requiring the FBI to meet the Fourth Amendment’s requirement to obtain a probable cause warrant before accessing the private communications of Americans taken from Section 702. This authority was enacted by Congress to enable surveillance of foreign terrorists and spies located on foreign soil. There is no reason why Section 702 cannot be used to surveil “a foreign terrorist overseas.” The problem is that this authority has become a prime resource for the FBI and other agencies to warrantlessly review the information of Americans. Sen. Rand Paul (R-KY), Ranking Member on the committee, responded: “You would think we’d be going after foreigners, but we are using the Foreign Intelligence Surveillance Act to go after Americans.”
 
In addition to skepticism from Sen. Paul and others on the committee, Director Wray’s assertions are contradicted by others with experience in FISA.
 
In a recent editorial, Sharon Bradford Franklin, chair of the independent government watchdog group, the Privacy and Civil Liberties Oversight Board (PCLOB), with two other board members in a recent Washington Times editorial, supported requiring a court order or warrant before the government can review Americans’ Section 702 data.
 
The PCLOB members noted that “the FBI has repeatedly violated querying rules to run searches on Americans. This includes impermissible searches for members of Congress, those who protested the murder of George Floyd, preachers, participants in an FBI community relations program, victims who reported crimes …The FBI has failed to get this right for more than a decade. The bureau’s persistent noncompliance over the years dramatically illustrates the need for independent, impartial, and external review. These compliance errors may also undermine the public’s trust in the FBI, raising real questions about its ability to police itself.”
 
In his written testimony, Director Wray also informed the committee that a warrant requirement would amount to a “de facto ban” on U.S. person queries because warrants are so difficult to obtain from a court. Would a warrant requirement necessarily be a “ban” that would “water down” the FBI’s ability to protect Americans?
 
David Aaron, who held several senior legal positions at the Department of Justice’s National Security Division, wrote in Just Security that “requiring the government to establish probable cause and obtain judicial approval before searching for U.S. person’s communications within previously collected material would bolster that confidence and is a relatively light burden on the government.”
 
A majority in Congress clearly agree. None other than Senate Judiciary Chairman Dick Durbin (D-IL) has said he will only support Section 702 reauthorization if there are “significant reforms,” including “first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”
 
Or, as Chair Franklin and her colleagues wrote: “We do not permit the police to break into a home without such court approval, and we should not permit government personnel to access our communications through U.S. person queries without court review. This is Civics 101.”
 
Sen. Paul told Wray: ”I fear that our federal government is still undertaking many of the same tactics that the Church Committee found to be unworthy of democracy.”
 
Perhaps it is the Fourth Amendment that has been watered down.

​The Congressional debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) has mostly centered around the outrage of federal agencies using an authority meant for the surveillance of foreigners on foreign soil to warrantlessly collect the communications of hundreds of thousands of Americans every year.
 
But the Section 702 debate highlights an even greater outrage that needs to be addressed – the routine practice by federal agencies to purchase and access the private data of Americans scraped from our apps and devices without a warrant.
 
While federal data purchases are not part of Section 702, history suggests that any reforms made to Section 702 to curtail the surveillance on Americans in the pool of “incidentally” collected communications will be futile if we don’t close this other loophole. Our data, freely collected and reviewed at will by the government, can be more personal than a diary – detailing our medical concerns, romantic lives, our daily movements, whom we associate with, our politics and religious beliefs.
 
The Wall Street Journal shined a much-needed light on this practice. It reported on the relationship between U.S. government agencies and the shadowy world of data-broker middlemen who peddle our most sensitive personal information. The Journal reported that India-based Near Intelligence has been “surreptitiously obtaining data from numerous advertising exchanges” and selling this data to the NSA, Joint Special Operations Command, the Department of Defense, and U.S. Air Force Cyber Ops.
 
The Journal accessed a memo from Jay Angelo, Near Intelligence general counsel and chief privacy officer, to CEO Anil Mathews about three privacy problems.
 
First, Angelo wrote that Near Intelligence sells “geolocation data for which we do not have consent to do so.”
 
Second, he wrote the company sells or shares “device ID data for which we do not have consent to do so.”
 
And, finally, Angelo wrote, the company violates the privacy laws of Europe by selling Europeans’ data outside of Europe. Customers include agencies of the U.S. federal government, which “gets our illegal EU data twice per day.” It is unclear the extent to which this company sells Americans’ data, though it seems likely that the privacy of Americans is implicated given that the company boasts of having access to data from a billion devices.
 
Near Intelligence is just one actor in this shadowy world of merchants of personal data. Congress should require government agencies to obtain a probable cause warrant to examine the private data of Americans, whether collected under Section 702 or through data purchases.

July was a banner month for surveillance reform. For years, civil libertarians have warned about the widespread practice of third-party data brokers selling Americans’ most sensitive and private information, scraped from our apps, to more than a dozen federal intelligence and law enforcement agencies, including the FBI, Drug Enforcement Administration, and the many agencies of the Department of Homeland Security.
 
The public is alarmed. Lawmakers in both parties are beginning to take effective action.
 
In July, the House Judiciary Committee unanimously passed The Fourth Amendment Is Not for Sale Act, which would restrict the ability of government agencies to warrantless extract Americans’ personal information from data purchases. Sen. Ron Wyden (D-OR) is reintroducing this measure in the Senate.
 
If the will of the Congress wasn’t clear enough, also in July the House passed an amendment sponsored by Rep. Warren Davidson (R-OH) and Sara Jacobs (D-CA) to the National Defense Authorization Act that expressly prohibits half of the intelligence community, including the NSA and the Defense Intelligence Agency, from purchasing our data at all, absent a warrant, court order, or subpoena.
 
Supporters of similar reforms range from the conservative Chairman of the House Judiciary Committee, Jim Jordan, to the liberal Ranking Member and former Chairman, Jerry Nadler. A passion for surveillance reform brings together respected members from Rep. Thomas Massie (R-KY) to Rep. Zoe Lofgren (D-CA), from Sen. Wyden to Sen. Mike Lee (R-UT).
 
It might seem, then, that surveillance reform is now a slam-dunk certainty. It isn’t.
 
Consider the fate of Lee-Leahy, a bill that would have imposed the rather modest goal of requiring the judges of the Foreign Intelligence Surveillance Act (FISA) court to seek the advice of civil liberties experts in cases that involve significant civil rights concerns when political, religious, or journalistic groups are surveilled and investigated. That measure passed the Senate in 2020 by an overwhelming 77 votes. Then, through a process of legislative confusion and the Trump Administration’s policy contortions, this modest and popular bill sailed into the round file like a paper airplane.
 
The Davidson-Jacobs Amendment and The Fourth Amendment Is Not For Sale Act risk dying in a far less dramatic way than Lee-Leahy did. All the elected champions of the surveillance state have to do is let these measures die in the darkness of a committee room or the Senate calendar. More good legislation has been killed by benign neglect than by explicit filibusters.
 
Any American who cares about privacy and civil liberties must draw two conclusions from this realization.
 
First, now more than ever, civil libertarians need to ramp up the activity. Members of Congress must know that this year we won’t settle for feel-good, symbolic votes. The Fourth Amendment Is Not For Sale Act must get a floor vote in the Senate.
 
Second, civil libertarians must continue to insist that FISA’s Section 702, an authority under which the government surveils foreigners, must be reformed so that it cannot continue to be used by the FBI and other agencies as a domestic surveillance tool. This reform must necessarily include closing the legal loophole that allows the government to buy our personal information and thumb through it, all without a warrant.
 
As Kenny Loggins sang so long ago, “this is it!” Our back is to the corner. Join the efforts of the civil liberties community by clicking here to stand up and fight!