​Perhaps you had other things to do during last week’s House Judiciary hearing, “A Continued Pattern of Government Surveillance of U.S. Citizens.” So here’s a summary: The Judiciary’s Subcommittee on Crime and Federal Government Surveillance brought together witnesses from across the political spectrum (including PPSA’s own Gene Schaerr) to identify potential solutions to the ongoing (and growing) problem of Fourth Amendment abuse by government entities.
 
At the heart of the discussion was the need to import probable cause warrants – the key requirement of the Constitution’s Fourth Amendment – to the practice of federal agencies freely accessing our international communications, as well as our personal, digital data.
 
Witnesses effectively rebutted the fearmongering campaign by the intelligence community to convince us that a warrant requirement for federal surveillance of American citizens is too onerous, and too dangerous to entertain. But the most effective remarks came from a Member of the committee.
 
Rep. Brad Knott (R-NC), a former U.S. Attorney for the Eastern District of North Carolina, addressed the issue of warrant requirements with the assurance of a former federal prosecutor. He spoke of what it took for him to get permission to “flip the switch” on some of the most “intrusive” forms of wiretapping American citizens.
 
“So you have to demonstrate necessity,” Rep. Knott said. “You have to demonstrate why other techniques are futile … the rigor we had to exercise was very important … it kept the internal investigators accountable.”
 
Rep. Knott said the warrant process made sure investigations were “open and honest.” Investigators knew “that their actions were going to be subject to pen and paper. They were going to be subject to judicial review … and opposing counsel.”
 
Given the clarity and accountability added by warrants, Rep. Knott added:
 
“It’s amazing to me that there’s so much resistance to the warrant requirement alone.”
 
Throughout the 90-minute hearing, Members and witnesses stressed one thing:
 
The countdown clock is ticking on what may be our last, best chance at meaningful reform – including the adoption of a warrant requirement for U.S. citizens when Section 702 of the Foreign Intelligence Surveillance Act (FISA) comes up for renewal next year (it’s due to sunset in April 2026).
 
Section 702 is the legal authority that allows federal intelligence agencies to spy on foreign targets on foreign soil. But it also “incidentally” picks up the international communications of Americans, which can then be warrantlessly inspected by the FBI and other agencies.
 
Section 702 got a lot of airtime at the hearing and was frequently linked with the words “loophole” and “backdoor.” The Reforming Intelligence and Securing America Act (RISAA) of 2024 attempted to fix Section 702 – and did add some useful reforms – but it also left a loophole in which the FBI and others attempt to justify warrantless backdoor searches on Americans’ private communications.
 
For the FBI in particular, this has become the go-to means to warrantlessly develop domestic leads.
 
“Three million times they did [backdoor searches] in 2021,” lamented Judiciary Chairman Jim Jordan (R-OH). Or, as James Czerniawski of Americans for Progress, put it: “Time and time again we have caught the intelligence community with their hand in the constitutional cookie jar.”
 
Members and witnesses alike also addressed a privacy crisis even greater than Section 702 – the routine purchases made by federal agencies of Americans’ private digital information from data brokers.
 
ACLU’s Kia Hamadanchy reminded the subcommittee that the kind of data that can be bought and sold would be, in the words of a former CIA deputy director, “top secret” sensitive if gathered by traditional intelligence means. It would have to be kept “in a safe,” not in a database.
 
The hearing also got at what many consider the underlying issue driving the new era of surveillance. Namely, the acknowledgment that we increasingly live not in one world, but two – our physical reality and its digital twin. But unlike our world, the laws governing how the Fourth Amendment should be applied in the digital context are largely unwritten. In other words, said Rep. Andy Biggs (R-AZ), it’s the “Wild West.”
 
And Ranking Member Rep. Jamie Raskin (D-MD) added, “New technologies make it a lot harder to reign in government intrusion in the lives of the people.” The unwitting result? “We live in a modern, albeit consensual, surveillance state,” declared Phil Kiko, principal at Williams & Jensen and former Judiciary counsel.
 
With any luck, things might be different a year from now when FISA is up for renewal, thanks to a U.S. District Court ruling in January.
 
“To countenance this practice,” of warrantless surveillance, wrote the court, “would convert Section 702 into … a tool for law enforcement to run ‘backdoor searches’ that circumvent the Fourth Amendment.”
 
That legal precedent didn’t exist when the last Congress debated FISA reforms. Emboldened by this landmark decision, Reps. Jordan and Raskin are pledging to once again work together in a bipartisan spirit to win this fight. Their continuing partnership captures the spirit of the subcommittee’s hearing and should give reformers a renewed sense of hope.

​With the summer travel season imminent, the already hot (and recently explored) topic of warrantless searches at U.S. borders and ports of entry keeps getting hotter by the day. The latest twist comes from ZDNET, where David Berlind asks the age-old question: Biometric vs. Passcode?
 
What, you were expecting “Plastic vs. Paper?”
 
Seriously, it’s come to this: How do American citizens best thwart their own government from its attempts to violate our constitutional rights? Specifically, how do citizens prepare against warrantless searches of their personal devices at border crossings, as Customs and Border Patrol agents seem increasingly determined to carry out?
 
The CliffsNotes version of ZDNET’s advice: The spoken word still matters (for now) relative to the Constitution, as in, “No person … shall be compelled in any criminal case to be a witness against himself.” Speech existed when the Constitution was written; biometric tech (fingerprint scanning, facial recognition, etc.) did not.
 
Put another way, being pressured to verbally recite your passcode could be construed as self-incrimination. So it is easier to refuse a request to speak it than to stand still and have your face open your device. But this much is sure: biometrics aren’t spoken, so that line to the Fifth Amendment is dotted at best. The same goes for Miranda. “The right to remain silent” is predicated on you actually remaining silent.
 
As for the Fourth Amendment itself, the Supreme Court has yet to meaningfully clarify its 1985 declaration that the Fourth’s “balance of reasonableness is qualitatively different at the international border than in the interior.” In practice, this means warrantless searches of your devices coming through customs is allowed. Among the many unanswered questions, what constitutes a “routine” search?
 
Is the biometric vs. passcode distinction a completely absurd technicality straight out of Monty Python? You bet your sweet privacy it is. But it’s also a gray area of unsettled law, so technicalities are currently one of our last defenses against this particular strain of government intrusion.

​Congratulations to Director of National Intelligence Tulsi Gabbard for launching a serious effort at intelligence community (IC) reform.
 
On Tuesday, Director Gabbard announced a “Task Force to Restore Trust in the Intelligence Community and End Weaponization of Government Against Americans.” Rather than saddle Washington with an unwieldy new acronym, TFRTICEWGAA, this task force will be known as the Director’s Initiatives Group (DIG).
 
“I established the Director’s Initiative Group to bring about transparency and accountability across the IC,” Director Gabbard said in a statement.
 
She lists many DIG priorities that are familiar hobby horses of this administration, though they are admittedly responses to deep and serious abuses – from official and secret government censorship during the Biden administration, to weaponization of government for political purposes.
 
What we find most intriguing about DIG is its charge to engage in mass declassification. We’ve long called out the absurd lengths the federal government goes to stamp “classified” on even the most innocuous documents, often in conflict with executive orders to declassify.
 
In this new effort we see enormous potential for DIG to inform Congress and the American people of key facts regarding oversight of intelligence community programs. A few are:
 

• How many Americans (or “U.S. Persons”) by year have had their communications warrantlessly collected and reviewed by federal agencies under FISA Section 702, a law meant to allow surveillance of foreign targets on foreign soil?
• How many times has evidence gleaned from Section 702 been used by prosecutors against American criminal defendants? Was the origin of such evidence revealed to those defendants’ counsels?
• How much money does each federal intelligence and law enforcement agency spend on purchasing the private and sensitive data of Americans from third-party data brokers?
• Who are the data brokers who sell this information to the government?
• How does each agency use this information obtained without warrants?

 
For years, PPSA has used FOIA and legal action to try to force the government into revealing how often it has “unmasked” – or internally revealed the identity – Members of Congress whose communications get picked up in surveillance. We also want to know if the agencies are using these surveillance authorities, whether Section 702 or purchased data, to surveil Members of Congress on the House and Senate Judiciary and Intelligence Committees, those with specific oversight of the intelligence community.
 
Director Gabbard has undertaken a strong and necessary corrective within the intelligence community – and one from the top, no less. Despite her position, she will no doubt encounter resistance and obfuscation along the way. But if she presses forward, Director Gabbard can reinforce the power of Congress to create guardrails and constitutional protections on programs that operate in near darkness.

​If this were a political thriller, “Quiet Skies” might be Russia’s clandestine government surveillance program being used to eliminate enemies of the state by poisoning their tea with polonium every time they take a flight.

In reality, “Quiet Skies” is the Transportation Security Administration’s secret spying program for the Air Marshal Service. First outed by the Boston Globe in 2018, Quiet Skies singles out potentially dangerous flyers for close attention and inspection (“enhanced observation”).

Enhanced observation is a 45-minute process that squeezes every inch of clothing, inspects the lining of suitcases, and requires a live review of every electronic device (meaning take it out, turn it on, and hand it over). Two bomb-sniffing canine teams and a plainclothes TSA supervisor may also be involved and, in the sky, up to three Air Marshals are tasked with watching these suspected passengers’ every move.

“SSSS” is TSA’s boarding pass designation for this treatment, which suggests that no focus groups or historians were consulted beforehand.

Such inspections in many cases are undoubtedly necessary to track bad actors intent on doing harm to the United States. As people who fly often with our family members, we are glad the government is on the lookout for the next potential shoe-bomber. Whistleblowers have indicated that the program, however, is also being abused as a means of targeting political opponents rather than as a $400-million-dollar anti-terrorist safety net.

Just ask Tulsi Gabbard, who was targeted in 2024 after returning from Rome with her husband. By then, of course, the Iraq War veteran and former Democratic representative had become the Biden Administration’s persona non grata du jour after she endorsed and campaigned for Donald Trump.

With Gabbard now the Director of National Intelligence, we hope that Rep. Tim Burchett’s (R-TN) request for answers as to why Gabbard was targeted will now see the light of day. Was she simply unlucky in being randomly chosen for this treatment, which has happened to one of us?
​
If politics is involved in any way, that would be a very serious misuse of security policy. You don’t have to be a fan of Director Gabbard to see how such an authority could be misused by any administration in any direction. Employing such tools to surveil political opponents is how republics fall.

As facial recognition and biometric scanning systems expand to 400 U.S. airports, Sen. Jeff Merkley (D-OR) is asking if this could be the beginning of a U.S. surveillance state.
 
In a video interview with Philip Wegman of RealClearPolitics, Sen. Merkley said:
 
“I'm concerned about the way facial recognition is used to encroach upon freedom and privacy around the world. We see China enslaving a million Uyghurs, and a tool they use is facial recognition software. It's so inexpensive and pervasive; if you put that power in the hands of a government, you can't know where it's going to go.

“This is not the kind of tool you want to give to the government in a free country. You would never know you have the ability to opt out at any airport where they're doing this program."

The Corporate Transparency Act’s plan to surveil 32 million American small businesses has been stopped cold.
 
On March 26, the Treasury Department published an interim final rule that removes the onerous beneficial ownership reporting requirement. From now on, only foreign entities are required to report or update the personal information of anyone who owns 25 percent or more of a given business.

There are good ways to track the money networks of terrorists, drug dealers, and other criminals. But asking hard-working American small business owners to spend hours and money to report information that doesn’t reveal any of that information was an idea whose time will deservedly never come.

We still look forward to the day when the “Repealing Big Brother Overreach Act” can be signed into law and the Corporate Transparency Act will be dismantled in toto.
​
No one expects “foreign reporting companies” to be transparent about which criminals might happen to own their businesses anyway. In the meantime, Treasury’s Financial Crimes Enforcement Network needs to find more realistic ways to safeguard the financial system from illicit activity – or at least be honest about its intent to extend surveillance over Americans’ financial transactions under the guise of flawed legislation like the CTA.

​The drafters of the U.S. Constitution could not have imagined Google, Apple, and cell-site technologies that can vacuum up the recorded movements of thousands of people. Still smarting from the British colonial practice of ransacking rows of homes and warehouses with “general warrants,” the founders wrote the Fourth Amendment to require that warrants must “particularly” describe “the place to be searched, and the persons or things to be seized.”
 
Courts are still grappling with this issue of “particularity” in geofence warrants – technology that analyzes mass data to winnow out suspects. Now a federal court in Mississippi has come down decisively against non-particular searches in location-and-time based cell tower data.
 
To reach this conclusion, Judge Andrew S. Harris had to grapple with a Grand Canyon of circuit splits on this question. His opinion is a concise and clear dissection of divergent precedents from two higher circuit courts.
 
Harris begins with the Fourth Circuit Court of Appeals in Virginia in United States v. Chatrie (2024), which held that because people know that tech companies collect and store location information, that a defendant has no reasonable expectation of privacy.” The Fourth Circuit reached its decision, in part, because Google users must “opt in to Location History” to enable Google to track their locations.
 
The Fifth Circuit Court of Appeals in New Orleans took the Fourth Circuit’s reasoning and chopped it up for jambalaya. The Fifth drew heavily on the U.S. Supreme Court’s 2018 United States v. Carpenter opinion – which held that the government’s request for seven days’ worth of location tracking from a man’s wireless carrier constituted an unconstitutional search.
 
This data, the Supreme Court reasoned, deserves protection because it provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.”’ Despite a long string of cases holding that people have no legitimate expectation of privacy when they voluntarily turn over personal information to third parties, the U.S. Supreme Court held that a warrant was needed in this case.
 
The Fifth followed up on Carpenter’s logic with a fine distinction in United States v. Smith (2024): “As anyone with a smartphone can attest, electronic opt-in processes are hardly informed and, in many instances, may not even be voluntary.” That court concluded that the government’s acquisition of Google data must conform to the Fourth Amendment.
 
The Fifth thus declared that geofence warrants are modern-day versions of general warrants and are therefore inherently unconstitutional. That finding surely rattled windows in every FBI, DEA, and local law enforcement agency in the United States.
 
Judge Harris worked from these precedents when he was asked to review four search-warrant applications for location information from a data dump from a cell tower. The purpose of the request was not trivial. An FBI Special Agent wanted to see if he could track members of a violent street gang implicated in a number of violent crimes, including homicide. The government wanted the court to order four cell-service provides to produce data for 14 hours for every targeted device.   
 
Judge Harris wrote that the government “is essentially asking the Court to allow it access to an entire haystack because it may contain a needle. But the Government lacks probable cause both as to the needle’s identifying characteristics and as to the many other flakes of hay in the stack … the haystack here could involve the location data of thousands of cell phone users in various urban and suburban areas.”
 
So Judge Harris denied the warrant applications.
 
Another court in another circuit may have well come to the opposite conclusion. Such a deep split on a core constitutional issue is going to continue to deliver contradictory rulings until it is resolved by the U.S. Supreme Court. In the meantime, Judge Harris – a graduate of the University of Mississippi Law School – brings to mind the words of another Mississippian, William Faulkner: “We must be free not because we claim freedom, but because we practice it.”

​If you are walking the streets of Laredo, Texas, and you withdraw $200 from your account at an ATM, under a new rule your personal identifying information will soon be dispatched to the Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury Department.
 
The same would happen if you withdrew $200 in 30 zip codes in El Paso, or in Cameron, Hildalgo, Maverick, or Webb counties in Texas, or San Diego and Imperial counties in California.
 
In all, this new regulation announced by the U.S. Treasury Department will require banks to report Americans for the supremely suspicious act of withdrawing $200. These consumers will then become the targets of Currency Transaction Reports along the U.S.-Mexican border.
 
The impetus, says the agency, is “deep concern with the significant risk to the U.S. financial system of the cartels, drug traffickers, and other criminal actors along the Southwest border.” But $200 sounds like a measly threshold for coyotes who charge illegal immigrants thousands to cross the border, and drug cartels that often make deals with barrels of cash. A $200 withdrawal certainly doesn’t sound like a risk to the U.S. financial system – or a likely indication of criminal activity.
 
But it is no surprise that the bureaucracy is taking advantage of President Trump’s reasonable designation of international drug cartels as terrorist organizations. FinCEN has long been at the center of efforts to make financial surveillance of Americans comprehensive.
 
This is the same agency that worked with the FBI to encourage financial institutions across the country to scour their data and file Suspicious Activity Reports without any clear criminal nexus. Suspicious activities that could have made an American a surveillance target under that now-discontinued program included merely shopping at certain stores, like Dick’s Sporting Good or a Bass Pro Shop. Perhaps the feds also included as a basis for surveillance laughing at Jeff Foxworthy jokes – on the theory that if you are buying Dick’s camo shorts, you just might be a redneck.
 
But this is not a joke. More than one million Americans will soon be unable to withdraw a very modest sum of money without being subjected to the same reporting requirements and surveillance risk under the Bank Secrecy Act as those who make $10,000 cash withdrawals in the rest of the country. The larger issue is why any American should be subjected to warrantless surveillance based on withdrawing a dime of his or her own hard-earned money. The basic concept is hard to square with the Fourth Amendment.
 
This is a dispiriting sign that the financial surveillance of the American people continues and even increases unabated. Nicholas Anthony of CATO, who broke this story, noted that Americans were upset when the previous administration lobbied Congress for the authority to surveil bank accounts with just $600 in activity. While that law never passed, Treasury’s new rule now subjects one million Americans living in a wide swath of the country to surveillance at just a third of that amount.
 
Perhaps the best withdrawal would be a revocation of this new rule.

​Here's a philosophical question for you: If no one searches for the information stored in a database, does that mean the information doesn't exist? It may be right there – where Column 32 meets Row 743 – but if no one has executed a search, has it been “found” or “seen” yet? Does it even exist? Now hang on to that curious idea for a moment and we’ll circle back.
 
Recall that we recently commended the nonprofit periodical Cardinal News for publishing an investigative series on the growing use of surveillance technology by local police in Southwestern and South Central Virginia.
 
As part of their investigation, Cardinal News drove through nearly 20 cities, towns, and counties, then used Virginia’s Freedom of Information Act (FOIA) to request the video surveillance data of their vehicle. And what was the result of these FOIA requests?
​

• Three entities complied in a timely manner.
• Two declined the requests.
• Several asked for more time (as the law allows).
• And two are taking them to court.

The city of Roanoke and the Botetourt County Sheriff want the City Circuit Court to rule whether they “really have to” provide the data Cardinal News requested. In their complaint, Roanoke and the Botetourt Sheriff make three less-than-compelling arguments:

1. Virginia’s FOIA statute says that new records do not have to be created in order to comply with a request. The plaintiffs claim that executing a search to find the requested information equates to creating a new record – and therefore they don’t have to do it. As we said at the beginning, what a curious idea. It seems to us that a search doth not a record make. Like the sound of the proverbial falling tree in the forest, the record in the spreadsheet already exists whether or not it’s looked at. One hopes, of course, the City Circuit Court will recognize this fallacy for what it is when it takes up the case this month.
   
   
2. The government plaintiffs define all license plate data as “investigative” – by default. Conveniently, they claim their contract with Flock Safety (who owns the cameras and stores the data) prohibits them from performing non-investigative searches. It may be that Roanoke and the county sheriff are anticipating a law that does not go in effect until next year. The recent Virginia statute that allows the use of these camera systems expressly exempts such data from being subject to FOIA requests: “System data and audit trail data shall not be subject to disclosure under the Virginia Freedom of Information Act.” But that’s next year, and this is now.
   
   
3. The government plaintiffs are also arguing that fulfilling FOIA requests (at least in Virginia) is a felony under state law – at least when a computer and any personally identifiable information is involved. This approach strikes us as a dubious read of the actual statute, which applies only when someone uses a computer to effect “material artifice, trickery or deception” (Virginia Code § 18.2-152.5:1). Giving the sheriff your license plate number and asking to see when and where you were being recorded is not going to send the responding official to prison.

A final note: As Cardinal News points out, Virginia law says computers can’t be used to gather identifying information – i.e., account numbers, credit card numbers, biometric data, fingerprints, passwords, or other truly private information. “That’s what the statute is protecting,” the newspaper argues. In other words, the law is not meant to protect you from your own license plate number.
 
Where does such chutzpah come from? This FOIA response perhaps shows that local government is learning from the mental gymnastics and rhetorical sleights-of-hand that federal agencies have mastered in fobbing off lawful requests.
 
We look forward to seeing how these too-clever-by-half arguments will fly in front of a Virginia judge. Stay tuned.

​We’ve long followed reliance on stingrays by federal, state, and local law enforcement. These are devices that simulate cell phone service towers to fool nearby devices into connecting and giving up everything – texts, calls, emails, and more, along with the location of the cellphone and information about the user/owner.
 
Law enforcement uses stingrays to target specific criminals, but the problem is – as is so often the case with surveillance technologies – the data of everyone in the vicinity gets swept up, including that of peaceful protesters. These sweeps pose a direct threat to the most precious rights Americans have – the First Amendment rights to free speech and to petition the government for a redress of grievances. Protests are not some Sixties-style fad that never went away. The right to protest is as home-grown as the Boston Tea Party, the Million Mom March, and the March for Life.
 
Yet there are numerous reports of stingrays and similar technologies being used by authorities to clandestinely spy on large-scale public protests. Most disturbing is the insistence by the FBI to keep any use of a stingray in specific cases a state secret. Based on documents obtained through PPSA Freedom of Information Act requests, we know that the FBI has used nondisclosure agreements to force local jurisdictions to hide the fact whenever stingrays are used, even in open court.
 
Now, thankfully, the Electronic Frontier Foundation has gone beyond protesting and filing court briefs to work with technologists willing to roll up their sleeves and get out the soldering iron. EFF is presenting an open-source tool to help detect stingray use. The aptly named Rayhunter will set you back only about $30, which is the cost of the hardware, the Orbic RC400L hotspot you’ll need (check Amazon, eBay, or any of your geeky uncles). Once in hand, simply follow the instructions on EFF’s open-source Rayhunter website.
 
As the Rayhunter gets out into the market, protesters of all stripes will be able to know if their First Amendment-protected activities are being surveilled – and to livestream the results.
 
Other steps should be taken by FBI Director Kash Patel or by Congress. Director Patel or Congress should mandate full disclosure about the origin of all evidence collected by a stingray and presented in court against a criminal defendant. Every American has the right to face his or her accuser and be confronted with the evidence against them, even when that evidence is digital and the result of proprietary technology.
 
For now, let us applaud the Electronic Frontier Foundation for giving Americans the all-too-rare chance to answer the question, “Am I being surveilled?” At the very least, Americans engaging in their First Amendment-protected right to protest can know if the government is turning their own phones against them.

​As we’ve reported, the Corporate Transparency Act (CTA) requires owners of America’s 33 million small businesses to report detailed personal data on anyone with at least a 25 percent stake in their company. This law represents that most dangerous of all mixtures – overreach and nonsense.
 
The stated purpose of this law is to catch crooks. So the ownership disclosure requirement in effect says:
 
“Dear Terrorist (or Cartel Member or Money Launderer), would you kindly tell us who owns at least 25 percent of your company? Having this information would make building a case against you so much easier.
So please check this box if you’re a criminal – Sincerely, the Feds.”
 
Such unassailable logic reminds us of the old standup routine that advises people to check their closets before bedtime for a possible axe murderer while he’s still hiding. Do that and you will be safe... somehow.
 
Fortunately, CTA’s days may be numbered. Rep. Warren Davidson (R-OH) has re-introduced what he calls the “Repealing Big Brother Overreach Act.” (A better name might be “Repealing the ‘Do You Think Criminals Are That Stupid Act’?”)
 
Not only does the Corporate Transparency Act fail to accomplish what it sets out to do (catch criminals), it also targets a completely irrelevant group in the process – the average American small business owner, forcing him or her to register with a massive federal database that can be accessed without a warrant. Your local barbershop, accountant’s service, and gym are the targets. Big businesses, financial entities, and more are exempt from CTA’s provisions, which only threatens small business owners with large fines and two years in prison if they don’t comply.
 
It doesn’t make sense that you can stop terrorists, drug dealers, and money launderers by going after honest small businesses. If this “beneficial ownership” provision ever went into effect, it is highly likely that the first fines and prosecutions would be against honest business owners who missed the filing deadline rather than a terrorist or money launderer.
 
PPSA believes that the government’s insatiable hunger to track ordinary Americans is the real intent behind this law. This is all in keeping with the recent extension of surveillance over Americans’ financial transactions. In the meantime, and thanks to a flurry of back-and-forth court rulings (see our filing before the 11th Circuit Court of Appeals) as well as new guidance from the Treasury Department, reporting beneficial ownership information is currently voluntary. As of today, no penalties will be associated with failing to report.
 
Treasury is also recommending a rule revision that limits the reporting requirements to foreign entities only. The stars seem to be aligning in favor of Rep. Davidson’s bill, with Alabama Republican Tommy Tuberville sponsoring it in the Senate. If this bill makes it to the Resolute Desk, President Trump is all but certain to sign it.
 
But now is the time to keep the pressure on. Let your representatives in the House and Senate know that you support the “Repealing Big Brother Overreach Act.”

​Americans value privacy in the marketplace when we vote with our dollars no less than when we go behind the curtains of a polling booth.
 
Now imagine if every dollar in our possession came with an RFID chip, like those used for highway toll tags or employee identification, telling the government who had that dollar in their hands, how that consumer spent it, and who acquired it next.
 
That would be the practical consequence of a policy proposal being promoted now in Washington, D.C., to enact a Central Bank Digital Currency (CBDC). Some have recently asked Congress to attach such a currency to the Bank Secrecy Act, to enable surveillance of every transaction in America.
 
Such a measure would end all financial privacy, whether a donation to a cause, or money to a friend. “If not designed to be open, permissionless, and private – resembling cash – a government-issued CBDC is nothing more than an Orwellian surveillance tool that would be used to erode the American way of life,” said Rep. Tom Emmer (R-MN).
 
This would happen because CBDC is a digital currency, issued on a digital ledger under government control. It would give the government the ability to surveil Americans transactions and, in the words of Rep. Emmer, “choke out politically unpopular activity.”
 
The good news is that President Trump is alert to the dangers posed by a CBDC. One of his first acts in his second term was to issue an executive order forbidding federal agencies from exploring a CBDC.
 
But the hunger for close surveillance of Americans’ daily business by the bureaucracy in Washington, D.C., is near constant. There is no telling what future administrations might do. Rep. Emmer reintroduced his Anti-Surveillance State Act to prevent the Fed from issuing a CBDC, either directly or indirectly through an intermediary. Rep. Emmer’s bill also would prevent the Federal Reserve Board from using any form of CBDC as a tool to implement monetary policy. The bill ensures that the Treasury Department cannot direct the Federal Reserve Bank to design, build, develop, or issue a CBDC.
 
Prospects for this bill are good. Rep. Emmer’s bill passed the House in the previous Congress. It doesn’t hurt that Rep. Emmer is the House Majority Whip and that this bill neatly fits President Trump’s agenda.
 
So there is plenty of reason to be hopeful Americans will be permanently protected from a surveillance currency. But well-crafted legislation alone won’t prevent the federal bureaucracy from expanding financial surveillance, as it has done on many fronts. PPSA urges civil liberties groups and Hill champions of surveillance reform, of all political stripes and both parties, to unite behind this bill.

​“We are open for business,” declared Beth Williams, the only board member currently serving on the five-seat Privacy and Civil Liberties Oversight Board (PCLOB). “Our work conducting important oversight of the intelligence community has not ended just because we are currently sub-quorum.”
 
A more accurate description for the board would be “solum unum.” One of the first acts of the Trump Administration was to fire the Democratic PCLOB members, leaving Republican Williams by herself.
 
Perhaps anticipating this, PCLOB’s board members shortly before the election adopted new rules that would allow any remaining board members – aided by the body’s professional staff of lawyers, policy analysts, and technologists – to continue to publish its recommendations to the intelligence community, and to share those with Congress and the public.
 
In a recent speech, Beth Williams spelled out commendable goals for ongoing efforts for her PCLOB of one.
 
Censorship: “Tying disfavored speech to counter-terrorism paves the way for censorship under the guise of national security,” Williams said. She complained that the Department of Homeland Security under Secretary Alejandro Mayorkas had been slow in responding to her requests for detailed information about the activities of the department’s Orwellian-sounding “Disinformation Governance Board.” Williams added: “I am hopeful that our renewed efforts with the current Administration will yield more transparency.”
 
Facial Recognition in Airports: Williams promises to weigh the operational benefits of this technology with concerns about privacy and civil liberty concerns.
 
Debanking: As with censorship, Williams says she is concerned about the government conflating “disfavored persons” with terrorism, leading to the “debanking” of people and organizations.
 
The Consolidated Audit Trail: Without any statutory basis, the Securities and Exchange Commission under former Chairman Gary Gensler assembled a database that monitors the identity, transactions, and investment portfolios of everyone who invests in the stock market. “Government surveillance of Americans’ financial activities – especially in the name of counter-terrorism – is ripe for oversight,” Williams said.
 
Section 702: PPSA has long worked to make sure that the Fourth Amendment’s warrant requirement applies to Americans whose communications are incidentally caught up in Section 702 of the Foreign Intelligence Surveillance Act.
 
But Williams and her former colleague Richard DiZinno dissented from PCLOB’s Democratic majority support for a warrant requirement in 2023.
 
Williams has previously called for “structural and cultural reforms” to the way in which the FBI accesses Americans’ information. The FBI has since tightened Section 702 querying procedures, and Congress has enacted reforms increasing the FBI’s reporting requirements to Congress. Williams appears content that these changes are enough to rest easy on Section 702.
 
We disagree. The FBI reviewed Americans’ communications 3.4 million times a few years ago, and more than 200,000 times in the most recent report. The bureau has accessed the personal information of Members of Congress, political donors, and journalists without a warrant.
 
“Is 200,000 warrantless queries better than 3.4 million warrantless queries?” Elizabeth Goitein of the Brennan Center for Justice’s liberty and national security program said to The Washington Post in 2023. “When you ask the question, you get a sense of how warped the universe we’re in is – that somehow 200,000 warrantless searches a year are an acceptable number.”
 
At the very least, we hope Williams will see that this is a valid perspective. PPSA hopes that that Beth Williams – lacking peers as sounding boards – will reach out to the civil liberties community to hear the perspectives and the questions that would have come from her departed peers.
 
Board Member Williams, can we meet?

​Credit Rep. Anna Paulina Luna (R-FL) for leading a task force of the House Oversight Committee to declassify federal secrets, including files concerning the assassinations of John F. Kennedy, Robert F. Kennedy, and the Rev. Martin Luther King Jr. The scope of Rep. Luna’s inquiry, approved by committee Chair James Comer (R-KY), will also examine the reach of Jeffrey Epstein’s vile activities, as well as government records on unidentified aerial phenomenon.
 
We urge Chairman Comer, Rep. Luna, and the other members of her task force to consider including in their declassification task force another matter of deep interest to the American people – key facts that reveal the extent of the American surveillance state and, especially, the extent to which it surveils Americans.
 
Digital Data Purchases
 
One area ripe for investigation is the common government practice of purchasing the personal digital data of Americans, scraped from apps and sold by data brokers. The FBI, IRS, Department of Defense, and Department of Homeland Security routinely buy our most sensitive and personal information and examine it without a warrant.
 
We urge Rep. Luna to work to unearth:

• The identity of the data brokers, foreign and domestic, who sell Americans’ information to the government.

 

• Estimates of the number of individual Americans whose personal information is purchased.

 

• The categories of purchases made that give the government access to our familial, romantic, professional, religious, and political associations.

What Is the Proposed “Fix” in the “Make Everyone a Spy” Law About?
 
Another area that cries out for transparency was the subject of a measure passed by Congress last April, which is widely called the “Make Everyone a Spy.” This law broadens the definition of an “electronic communications service provider” to practically any business or house of worship that offers free Wi-Fi. Falling under this definition obligates a business to secretly spy on its customers for the National Security Agency.
 
At the time of passage, Congress promised to narrow the scope of this law to types of companies defined in rulings by the Foreign Intelligence Surveillance Act (FISA) Court that were previously excluded from this law. This fix was nixed in the House, leaving the most expansive version of the law imaginable, hence the popular moniker – Make Everyone a Spy.
 
These companies are widely believed – and even hinted at in open debate on the Senate floor – to be providers of cloud storage.
 
We urge Rep. Luna and her colleagues to work to make public the nature of the proposed legislative fix. Such a disclosure would inform future debate in Congress over the scope of this ECSP provision, which has enormous implications for Americans’ privacy.
 
Topline Numbers on FISA Section 702
 
Yet another area that needs greater transparency is the impact of government surveillance under FISA Section 702. This law was enacted by Congress to enable surveillance of foreigners on foreign soil. But in recent years it has been used to search for the communications of millions of Americans “incidentally” caught up in this foreign surveillance program.
​

• We urge Rep. Luna to dig out the number of Americans who have had their communications searched under FISA Section 702 by the FBI.

This information is essential for an informed debate when Congress next considers the reauthorization of Section 702 in early 2026.
 
Spying on Members of Congress
 
There are also clear signs the intelligence agencies have spied on Members of Congress by “unmasking” their identities in foreign communications, and possibly examining their communications by tapping into the “upstream” backbone of the internet.
 
We urge Rep. Luna to:
​

• Work to release records on the “unmasking,” “upstreaming,” or purchasing of personal data by the NSA, CIA, or FBI of 48 current and recent members of committees with oversight responsibilities over the intelligence community, ranging from Marco Rubio to Devin Nunes, and Elise Stefanik.

Years of Freedom of Information Act requests and subsequent lawsuits by our organization and our civil liberties peers have rarely been met with substantive answers. There is no reason why the Congress and the American people do not already know the answers to these questions, none of which would compromise national secrets or intelligence “sources and methods.”
 
Chairman Comer, Rep. Luna, and the other members of the task force have a priceless opportunity to use their deep dive into the government’s sea of secrets to inform Congress and the American people of the nature and extent of federal surveillance of Americans.

​When CNN last week filed a Freedom of Information Act (FOIA) request asking for details about the Department of Government Efficiency (DOGE) and who has been granted access to sensitive or classified government documents, the news organization says it received an anonymous response from an Office of Personnel Management email account.
 
“Good luck with that,” the reply said, “they just got rid of the entire privacy team.”
 
So how outraged are we as a civil liberties organization that often files FOIA requests over the firing of very people who process our requests?
 
Not very. To be candid, PPSA has a higher level of concern over the change of the New York Yankees’ facial-hair policy, although we are split internally between a pro-beard and anti-beard faction.
 
The reason for our insouciance is that while privacy personnel in government offices scrupulously acknowledge receipt of our filings, the follow-up is always a ramshackle mess usually leading to a dead end. Deadlines mandated in statute are routinely ignored. And when the government does deign to answer us, it comes back with something called a “Glomar response.” This is a judicially created doctrine from the 1970s – created in response to reporting on the CIA’s recovery of a sunken Soviet submarine with nuclear-tipped missiles – that allows agencies to issue a non-response response.
 
Glomar responses, once uncommon, are now the boilerplate answer for most of our FOIAs.
 
This happened most recently when PPSA filed a FOIA request asking the National Security Agency to produce records showing how much money it spent buying Americans’ personal digital data, the size of the dataset purchased, and the sources of the data.
 
In July, NSA gave us a classic Glomar response, that it cannot disclose “the existence or non-existence” of the requested information. The government usually shrugs off our lawful requests for information by issuing a Glomar response.
 
When we sought dollar amounts of NSA spending on purchases of Americans’ personal information, and who is selling it to them, the NSA’s Glomar response also included a statement that it had not performed a records search – as required by the FOIA law. Riddle me this: How did the NSA know that these documents merited the hush-hush, top-secret Glomar response, previously reserved for the recovery of Soviet nuclear tipped missiles, if the agency didn’t even search for them?
 
Another one of our FOIA requests: We asked the government to reveal top-line facts about purchases about surveillance of Members of Congress who served on committees with oversight of the intelligence communities?
 
Glomar response.
 
Another one: Can the government reveal how many times it has “unmasked” – or internally identified – Members of Congress caught up in foreign communications?
 
Glomar response.
 
And then there is this middle-finger response from the Department of Justice to another one of our FOIA requests. They sent us 40 completely redacted pages to a FOIA request, with only one line unredacted: “Hope that’s helpful.”
 
We are sorry people in the privacy offices of the government are losing their jobs. We appreciate that they don’t make policy, just execute it, although that responder at Justice – who didn’t have the guts to sign his or her name – should probably find employment elsewhere, preferably a junkyard. We hope the rest of these government employees will be happier in public or private-sector jobs that actually do something for somebody.

Apple just killed its encrypted services enabled by its Advanced Data Protection tool in the United Kingdom rather than allow the British government to use it as a warrantless spy device on customers worldwide.
 
Forced into this action by a draconian government order, Apple’s action will remove a widely used service from the hands of millions of British customers. Encryption allows users to maintain the same level of privacy they would expect in a private conversation. This privacy allows victims to hide from stalkers, women and children to report abuse, dissidents to communicate around tyrants, and people to keep snoopy government out of their lives.
 
The Backstory
Apple designed its Advanced Data Protection with end-to-end encryption so well that the company itself doesn’t have the ability to review a customer’s items stored on iCloud such as their notes, images, text message backups, and web bookmarks. Only customers can decrypt their own data.
 
Two weeks ago, the UK Home Office ordered Apple to build a backdoor to grant the British government access to users’ data under the UK Investigatory Powers Act. Worse, the order demanded that Apple provide a backdoor to global communications, giving British investigators access to the private data of Americans and everyone else. Apple’s action appears to prevent that expansion to global surveillance.
 
PPSA’s Statement
Bob Goodlatte, PPSA Senior Policy Advisor and former Chairman of the House Judiciary Committee, issued this statement:
 
“It is a shame that the law-abiding citizens of the United Kingdom will lose access to a well-regarded encryption system because the British government does not respect their right to privacy. People who are able to keep their personal and business records and financial transactions protected by using encryption are far safer and prevent far more crime than if anyone, including well-meaning but inevitably careless governments, have so-called back-door keys that eventually always fall into the wrong hands. Thank goodness Americans have a Bill of Rights to protect their freedom. We must never take it for granted.  
 
“The British people should demand nothing less from a disrespectful government.”
​

​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. 

For almost 70 years, the President’s Intelligence Advisory Board (PIAB) has advised U.S. Commanders-in-Chief on the effectiveness of the country’s intelligence operations. President Donald Trump recently announced his PIAB roster, chaired by his longtime ally, former Congressman and House Intelligence Committee Chairman Devin Nunes.
 
In Nunes, Trump has chosen a super-utility player when it comes to evaluating the efficacy and integrity of the intelligence community. When Nunes was Chair, the Department of Justice surreptitiously collected data on multiple committee staffers – an unlikely coincidence given that Nunes was then investigating the FBI’s suspicious interest in Trump’s 2016 campaign, and clashing with the Justice Department and the FBI. Chairman Nunes was vocal and effective in exposing government surveillance abuses.
 
That experience alone makes Nunes a good choice to chair PIAB, as he understands firsthand the dangers of surveillance overreach in domestic contexts. Yet he’s also strong when it comes to spying on other countries, having vigorously supported the renewal of Section 702 of the Foreign Intelligence Surveillance Act (FISA) in 2018.
 
Such balance is needed on this advisory board. When advising the president on intelligence matters, we urge the new PIAB to assess three well-documented misuses and abuses:

1. FISA Section 702: Invaluable for tracking foreign spies, it has long been used for unbridled surveillance of Americans on American soil. The ongoing abuse of Section 702 calls out for substantive reforms to shore up Fourth Amendment rights, including a warrant requirement for searches of Americans’ data.
   
   
2. The dangerous expansion of FISA’s Electronic Communication Service Provider standard – meaning the network/server user data of churches, law offices, gyms, department stores, campaign offices, car dealerships, you name it – can be spied on by the government without restriction. Some in the House blocked a promise made in the Senate’s passage to narrow this overreaching surveillance of Americans. Today, almost every free, business Wi-Fi network Americans use can be repurposed to spy on them. 
   ​
   
3. Commercially Available Information sold to federal agencies. At present, third-party data brokers may sell sensitive personal information (scraped from our apps, for example) to government intelligence and law enforcement agencies – from Americans’ financial and bankruptcy records, health and mental health issues, browsing and location histories. Virtually every aspect of our personal online identities can be acquired by the government, without cause or a warrant.

Other members of the newly-announced board include:

• Scott Glabe, Homeland Security alumnus
• Amaryllis Fox Kennedy, former CIA officer
• Wayne Berman of the Blackstone, Inc.
• Reince Priebus, former White House Chief of Staff
• Robert O’Brien, Former National Security Adviser
• Katie Miller, former Communications Director for Mike Pence

Given the experience of this team, we have high hopes they will bring balance to the board’s investigations and deliberations. Biden’s PIAB sidestepped calls for serious reforms of Section 702, despite being presented with evidence detailing more than 278,000 instances of rules violations by the FBI.
 
With President Trump’s stated goal that PIAB should “restore integrity” to the Intelligence Community, we urge the president’s PIAB appointees – who certainly have their work cut out for them – to do exactly that. They should begin by recommending specific measures to reign in the FBI’s rampant surveillance of Americans.

​At a time when quality journalism is believed to be dead, PPSA is finding incisive local reporting on how city by city, county by county, state by state, the elements of a national surveillance state are being put into place. Journalists are reporting on the alarming growth of surveillance networks, the generous federal and state funds and grants that fuel this growth, the impacts of surveillance on the rights of everyone, and on the privacy of the vulnerable.
 
***
 
One exemplar of local reporting is Cardinal News of Virginia, which is releasing an investigative series on the creeping emergence of comprehensive surveillance throughout the southern portion of that state.
 
The Cardinal article begins by asking: “So if the question is, ‘Who's watching me?’ The answer is: practically everyone.” Its reporters and editors reached out to 100 law enforcement agencies in Southwest and Southside Virginia, from county sheriffs’ offices to big city police departments.
​

• Cardinal found that 81 of 100 police agencies use some form of public surveillance that records and gathers data on citizens with no specific investigatory predicate.
  
  

What is happening in this portion of Virginia is happening everywhere. This is not the result of some nefarious scheme but rather the natural outgrowth of understaffed local law enforcement looking to use surveillance technology to plug the gaps and catch bad guys. These elements – automated license plate readers, facial recognition software, drones and other technologies – can all connect and share data, slowly knitting together a national system of surveillance. Add the power of artificial intelligence, and the means are being put in place to follow people by their movements, their activities, their associations, and their beliefs.

Who is paying for this? “A funny thing happened on the way to defunding the police,” is how the newspaper archly puts it. Cardinal reports the federal American Rescue Plan of 2021, meant to provide a large array of technology and body armor for police, is a major funder of the rollout of local surveillance technology. In addition to state funds, other journalists trace money for surveillance systems to HUD grants and federal funds provided to states meant for covid relief.
 
This federal and state largesse is funding the regional network of automated license-plate readers. With this technology, AI creates “vehicle fingerprints,” unique characteristics that include characteristics such as vehicle color, roof racks, and bumper stickers. This technology can be used to track robbers, abductions, confused elderly drivers, but also everyone else as they come and go from churches, mosques, gun stores, political rallies, and mental health clinics.

***
 
Todd Feathers of Gizmodo walked the streets of Toledo, Ohio, to survey the results of comprehensive surveillance – in this instance, streaming live images of residents of public housing complexes straight to police headquarters.
 
“This kind of surveillance has become the norm in Toledo, where living in subsidized housing now means being watched outside your home day and night by an officer you can’t see or speak to,” Feathers reports. He adds that this is the result of the city’s contract with Fusus, “a company whose controversial technology enables cops to access live streams from private camera networks that opt in to the system.”

• Feathers reports that in the first ten months of 2024, Toledo police spent a cumulative 3,822 hours – the equivalent of 159 days – watching live streams from 23 Fusus-enabled cameras aimed at one public housing complex.

 

• Officers spent 18,751 hours streaming live camera feeds from 275 cameras at 12 apartment complexes. That was twice as much time as they spent watching the other 439 Fusus-enabled cameras spread throughout Toledo combined.

“This data really illustrates the risks associated with this type of surveillance,” said Beryl Lipton, a senior investigative researcher with the Electronic Frontier Foundation, interviewed by Feathers. “The idea that people who are already in a vulnerable space in their housing development are subject to increased levels of surveillance simply because that is where they live really highlights how inequitable and unjust these applications of surveillance can be.”
​

• Only 20 percent of the city’s crime occurred within half a mile – a wide buffer zone – of one of the 12 housing complexes, according to police data on homicides, shootings, aggravated assaults, robberies, thefts from vehicles, and car thefts. But 66 percent of the time a Toledo officer streamed a live feed through Fusus, the camera was at one of the 12 developments.

Feathers concludes that “an important public safety decision – where police should focus their attention – is increasingly determined not by where crime happens, but by which private entities have chosen to pay thousands of dollars to join Fusus’s surveillance network.”
 
Worse, the local ACLU reports that the Toledo police lack a detailed policy of what officers can and can’t use these Fusus-enabled cameras for, set limits on how long footage collected through Fusus can be stored, and state whether anyone outside the Toledo Police Department is allowed to access the camera systems or recorded footage, and under what circumstances.
 
***
 

Gizmodo reported that when the Fusus contract came up for a vote before the Toledo city council, not a single council member asked police a question about how that technology might be used.
 
There are signs, however, that many local and state leaders are beginning to ask deeper questions and show a willingness to halt the expansion of surveillance. We reported earlier that in Virginia, state House Majority Leader Charniele Herring, a Democrat, advanced a bill that would also have enabled a dramatic expansion of cameras on state highway rights-of-way.
 
She argued that her bill would put “guardrails” on the use of surveillance. The bill failed in committee, 9 to 6 against the bill, with both Democrats and Republicans siding for and against Leader Herring’s bill.
 
Leader Herring’s bill did, in fact, include many useful guardrails, such as a 30-day limit on retaining license plate images, requiring reasonable suspicions of a major crime or incident before accessing the data, an audit trail for use, and making misuse of the system a Class I misdemeanor. Yet her bill still failed.
 
Perhaps this vote points to a new skepticism, a willingness by policy makers to slow down and think through the implications of this massive surveillance rollout. As policymakers deliberate, we hope they will continue to be informed by more good reporting like that of Cardinal News and Gizmodo.

​Robert Oppenheimer was famously conflicted about his work on the atomic bomb, as was Alfred Nobel after inventing dynamite. One supposes any rational, non-sociopath would be.
 
But imagine if Alexander Graham Bell had similarly cast aspersions on the widespread use of telephones or Edison on electrification? When Morse transmitted, “What hath God wrought?” as the first official telegraph, it was meant as an expression of wonder, even optimism. We expect weapons of destruction to come with warnings. By contrast, technological revolutions that improved human existence have rarely come with dire predictions, much less from their inventors. So it’s a bit jarring when it happens.
 
And with artificial intelligence, it’s happening.
 
Geoffrey Hinton, the “godfather of AI,” quit Google after warning about its dangers and later told his Nobel Prize audience, “It will be comparable with the Industrial Revolution. But instead of exceeding people in physical strength, it’s going to exceed people in intellectual ability. We have no experience of what it’s like to have things smarter than us.”
 
Now enter Sam Altman, the man whose company, OpenAI, brought artificial intelligence into the mainstream. In a blog post published this week, Altman opened with his own paraphrase of “But this feels different.” Hinton and Altman are both referring to what many consider the inevitable turning point in the coming AI revolution – the advent of artificial general intelligence, or AGI. In short, this will be when almost every computer-based system we encounter is as smart or smarter than us.
 
“We never want to be reckless,” Altman writes in the blog (emphasis added).
 
“We believe that trending more towards individual empowerment is important,” Altman writes, “the other likely path we can see is AI being used by authoritarian governments to control their population through mass surveillance and loss of autonomy.” To be fair, OpenAI was founded with the goal of preventing AGI from getting out of hand, so perhaps his somewhat conflicted good cop/bad cop perspective is to be expected.
 
Yet that hasn’t stopped Altman from taking what might someday be seen as the “self-fulfilling prophecy” step on our road to perpetual surveillance.
 
Altman is partnering with Oracle and others in a joint venture with the U.S. government to build an AI infrastructure system, the Stargate Project. Two weeks after the venture was announced, his blog is acknowledging the need for a “balance between safety and individual empowerment that will require trade-offs.”
 
What to make of all this? Sam Altman is a capitalist writ large. He believes in the American trinity of money, freedom, and individualism. So when he feels compelled to ponder the looming potential of a technocratic authoritarian superstate from his brainchild, he is to be believed.
 
Altman dances ever-so-deftly around the potential dangers of mass surveillance in the hands of an AGI-powered authoritarian state, but it’s there. AI is the glue that makes a surveillance state work. This is already happening in the People’s Republic of China, where AI drinks in the torrent of data from a national facial recognition system and total social media surveillance to follow netizens and any wayward expressions of belief or questioning of orthodoxy. Altman is fundamentally worried that the technology he’s helping to unleash on the world could prove to be the fundamental unraveling of individual liberty, and democracy itself.
 
One last thing worth noting: Sam Altman is an apocalypse-prepper. “I try not to think about it too much,” he told The New Yorker in 2016. “But I have guns, gold, potassium iodide, antibiotics, batteries, water, gas masks from the Israeli Defense Force, and a big patch of land in Big Sur I can fly to.”
 
Just imagine what he isn’t telling us.

​“I have as much privacy as a goldfish in a bowl,” Princess Margaret once said, despairing of the paparazzi. Now, thanks to the Home Secretary of the United Kingdom, you too can feel like royalty.
 
The British government has recently issued a secret order demanding a backdoor to all of Apple’s encrypted communications.
 
From time to time in the United States the Justice Department has demanded that Apple help it jailbreak a suspect’s iPhone. Apple stoutly refuses to bend the knee, knowing that granting one such demand would create a backdoor that would destroy Apple’s privacy promise forever. Since 2022, Apple has allowed users to opt for Advanced Data Protection in which no one but the user can access encrypted messages on iMessages.
 
Now London is not demanding, as the Justice Department did, to force Apple to create backdoors to individual accounts of suspected criminals. Instead, London is demanding backdoor access to all encrypted material – messages, texts, and images – stored on the cloud by all Apple customers around the world, including U.S. citizens.
 
“The British government’s demand is breathtaking by comparison,” said Erik Jaffe, President of PPSA. “It is nothing less than internet imperialism.
 
“We had a revolution, left the British Empire, and adopted the Fourth Amendment in part because of the abusive, unreasonable, and warrantless searches performed by agents of the Crown,” Jaffe said. “We should not tolerate the reimposition of such British high-handedness.”
 
Meredith Whittaker, president of the nonprofit Signal app, told The Washington Post, “If implemented, the directive will create a dangerous cybersecurity vulnerability in the nervous system of our global economy.” Given the breathtaking scope of this order, it is likely only a matter of time before similar orders will be directed at Meta’s encrypted WhatsApp backups. Signal and Telegram services might be next.
 
This is a terrible precedent with terrible consequences. With the UK now demanding a backdoor, expect China and other authoritarian regimes to follow suit.
 
The witless Whitehall nanny-staters overlook the value of encryption in protecting dissidents from tyrants, journalists from homicidal cartels, and even law-enforcement itself from organized criminals and state actors. Once this backdoor gets into the wild – and it will – women and children will have far less protection against stalkers and abusers. Inventors and businesses will also be exposed to industrial espionage by competitors and China. Everyday consumers who simply value their privacy will be betrayed.
 
It is out of concern for the human right to privacy that the European Court of Human Rights rejected a Russian law that would have broken encryption. Now, what Vladimir Putin could not achieve, the British government is happy to do for him.
 
This is just the latest sign that official attitudes toward personal privacy have crossed a threshold into authoritarian thinking. There is nothing shocking or unusual about privacy in communications. It has been the de facto rule for most person-to-person communications for all of human history. Once a government whets its appetite for your personal information, it will almost always seek more.
 
“Efforts to give the government back-door access around encryption is no different than the government pressuring every locksmith and lock maker to give it an extra key to every home and apartment,” Jaffe said.
 
Now the same country that celebrates the declaration of Sir Edward Coke, a 17th century jurist who declared that every person’s home is his “Castle and Fortress,” is busy forging digital keys.
 
PPSA urges the U.S. government to exert its diplomacy and defend Americans’ privacy.

​A detective in Midlothian, Virginia, in 2019 asked Google to ping cellphone locations of everyone who passed within a circumscribed area within one hour of the robbery of nearly $200,000 from a credit union.
 
That order led to a sweep through a Ruby Tuesday restaurant, a Hampton Inn, an apartment complex, and a nursing home within the prescribed area. The Gordian knot of issues raised by this wide-ranging search will be examined in oral arguments in United States v. Chatrie in an en banc hearing to be held by the Fourth Circuit Court of Appeals in Richmond, Virginia, at 9 a.m. Thursday.
 
The court will consider: Does the wholesale expropriation of the cellphone and location data of a large number of people in a geofenced area amount to a modern version of the “general warrants” of the agents of the British Crown during the colonial era?
 
A lower court judge, Hannah Lauck, took her guidance from the U.S. Supreme Court in Carpenter v. United States (2018), which held that the search of a suspect’s location history from a cellphone tower came under the Fourth Amendment’s requirement for a warrant. Judge Lauck wrote “it is difficult to overstate the breadth of this [geofence] warrant” and that an “innocent individual would seemingly have no realistic method to assert his or her privacy rights tangled within the warrant. Geofence warrants thus present the marked potential to implicate a ‘right without a remedy.’”

And, as every law student knows, a right without a remedy is no right at all.
 
The Fourth Circuit panel, however, reversed that ruling, holding that no warrant at all was required in this case. The court reasoned that the limits on location tracking from Carpenter applied only to longer-term tracking. The Eleventh Circuit in Atlanta, in a similar case, agreed. Then the Fifth Circuit in New Orleans held – correctly in our view – that not only is there an expectation of privacy in location data, but broad geofence warrants are inherently unconstitutional. As a result, the appellate courts are not just split, they look like the spaghetti tangle of tracks in a railway yard.
 
Such tangles are usually untangled by the U.S. Supreme Court. But after PPSA filed an amicus brief in favor of an en banc hearing by the full Fourth Circuit court, that court agreed to allow all the judges to weigh the constitutional equities in this case.
 
We asked the court to consider that if the government can request the location of all the individuals within a geofenced area. For example, could it request all photos in the cloud that were taken within that same area? After all, AI can now estimate, with astonishingly high accuracy, the location of a photograph. Invoking Carpenter, we asked the court if we have to leave the public’s Fourth Amendment rights to “the mercy of advancing technology.”
 
To hear the court’s oral argument, go to the court’s calendar and search for “Chatrie.” Or just wait and we will give you a digest of answers to the judges’ questions and their apparent leanings. This is an exceptionally important case for the Fourth Amendment. Stay tuned.

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.

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

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