Can authorities rifle through the location histories of thousands of innocent people to catch one guilty person? One federal judge in Mississippi recently gave a decisive answer: No.

U.S. District Judge Carlton Reeves of the Southern District of Mississippi had no qualms about drawing the line at the exact edge of the U.S. Constitution. This case concerned “tower dumps,” in which authorities require a cellular provider to produce information concerning every device that connected to specified cell towers during a defined period.

On Aug. 5, Judge Reeves held that such “tower dump” warrants are per se unconstitutional.

Ryan T. Fenn and Lee M. Cortes, Jr. of Arnold & Porter report in Enforcement Edge that Judge Reeves based his ruling on the conclusion that such searches intrinsically violate the Fourth Amendment because, by their nature, tower dumps cannot be particularized. It is, therefore, impossible to establish probable cause as required by the Fourth Amendment with respect to each device captured.

Judge Reeves acknowledged that tower dump warrants can be “uniquely effective” in catching criminals by placing them at the scene of a crime. His concern was that such a search, however, also sweeps in information belonging to thousands of people who have no connection to the investigation. In his opinion, Judge Reeves wrote that the government cannot obtain “an entire haystack because it may contain a needle.”

Judge Reeves extended the logic of the Supreme Court’s 2018 Carpenter ruling, which recognized a privacy interest in cell-site location information, but declined to address tower dumps. He also noted that the recent Supreme Court Chatrie decision held that geofence warrants are searches, regardless of the time limits placed on a warrant. The logic of these cases extends to tower dumps, which can identify people inside their homes, offices, and houses of worship – data Judge Reeves found to be “intimate and deeply revealing.”

Will this federal judge’s ruling in Mississippi upend the common practice of scraping mass data from cell-phone towers? Will it set a precedent that will quickly bring other forms of mass surveillance – such as federal agencies’ purchases of Americans’ digital lives from data brokers and the increasingly ubiquitous network of public and private cameras to which law enforcement has easy access – under constitutional scrutiny?

Short answer: Not likely. But it is still a very positive development.

As Fenn and Cortes write, “this is one decision from a district judge – it binds no other court, not even others in the Southern District of Mississippi.” True.

We believe, however, that Judge Reeves’s ruling is significant. It is likely to inspire more such cases and rulings – coming down on both sides of the issue – that will force the Supreme Court to provide a more detailed and comprehensive answer on the constitutionality of all forms of geolocation tracking.
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Stay tuned.

​The Department of Homeland Security (DHS) is assembling a surveillance infrastructure capable of tracking people’s faces, phones, cars, movements, communications, and associations – and then combining that information into detailed personal dossiers.

That is the alarming picture presented by a new Brennan Center for Justice report.

Since January 2021, DHS has committed more than $2.9 billion to surveillance, data collection, and analytical tools. Because federal contracting records are opaque and often incomplete, the Brennan Center cautions that this figure is probably a minimum.

The department’s arsenal falls into six broad categories: video surveillance, biometrics, location tracking, access to phone content, commercial-data purchases, and data analytics.

DHS has spent or promised more than $1 billion for biometrics alone. Its tools can identify people through facial and iris recognition, including through mobile devices used by agents in the field. One system, Mobile Fortify, can collect information about anyone – including U.S. citizens – and DHS documentation says images may be retained for 15 years.

Meanwhile, Customs and Border Protection has promised more than $675 million for drones. Although its drone program has long been justified as a border-security tool, the Brennan Center reports that drones have also been deployed inside the country to assist immigration raids and monitor protests.

DHS also purchases access to commercial data capable of tracking phones and vehicles. Its technology can extract messages, contacts, photographs, and other contents from cellphones. Information from these sources flows into centralized repositories, where artificial intelligence tools can search across databases, connect disparate facts, and generate leads, targets, and detailed profiles.

One such system, ICE’s Repository for Analytics in a Virtualized Environment, or RAVEn, allows investigators to combine information from multiple databases. Another tool, Palantir’s Enhanced Leads Identification and Targeting for Enforcement, maps individuals’ locations and connects them with other personal information to guide enforcement operations.

DHS policies generally prohibit acting solely because someone engaged in constitutionally protected speech, association, or dissent. But that protection offers little comfort when surveillance tools have reportedly been directed at protesters and observers.

A database does not forget that someone attended a rally, visited a religious institution, met with a political organization, or associated with an unpopular group.

The real danger lies not in collecting each piece of information, but in combining the pieces.

Cameras, biometric databases, cellphone searches, location histories, commercial records, and AI analytics together give the government the power to reconstruct a person’s life.
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Congress funded this expansion. It must now reassert control over the purse, investigate how these technologies are being used, and impose enforceable privacy safeguards for American citizens. A comprehensive domestic surveillance machine is much easier to restrain before it becomes a permanent feature of American life.

​The story of the mobile spy SUVs purchased by the state of Texas for $4.5 million continues to unfold.

According to Alex Barrientos of Gadget Review, the Texas Department of Public Safety’s purchase of four Chevy Tahoes includes an extra $3.9 million for a proprietary surveillance system from a company named Cognyte, Israel’s version of Palantir. Cognyte is the maker of the FalcoNet surveillance technology embedded in the SUVs.

FalcoNet, writes Andrew Collins of The Drive, has already been deployed in Florida (as has similar stingray technology elsewhere). Its purpose is simple, if ominous: get between cellphone towers and any phones that happen to be near them, and then secretly intercept and capture everything that being transmitted.

FalcoNet and its competitors do this by pretending to be ordinary cell towers, tricking every phone nearby into connecting (smartphones can't help themselves because they are programmed to respond to the strongest signal). Cognyte claims FalcoNet can be activated in under three minutes and can connect with thousands of devices at once as the surveillance vehicles roll through traffic and past pedestrians.

Those intercepts are meant to catch the communications of bad actors being sought by authorities. But the software cannot filter out the private information of bystanders from that of suspects, which means that Texas and Florida are sweeping up the data of everyone who happens to be in the mobile system’s vicinity. The data of thousands of innocent persons can then be sifted through afterward.

This presumes that only law enforcement will do the sifting – and not hackers, data brokers, or hostile state actors. Even so, that is cold comfort given what we know from the actual abuse and potential misuses of similar surveillance systems.

The growing use of stingrays, whether installed on poles in busy parts of town, in mobile police units, or even mounted on drones, underscores the importance of commercial encryption services in protecting our everyday communications. We should be able to enjoy the same level of privacy in our texts and emails that we expect when having a private conversation with a friend.

Equally important, the entire premise of such spy regimes – no matter what the official rationalization – flies in the face of the Fourth Amendment. Designed to protect against the invasive and indiscriminate mass searches of general warrants, the Fourth Amendment offers a simple calculus: probable cause + a court warrant + narrowly defined search criteria.
In their current forms, programs like the aptly named FalcoNet – and it is a net – are functional dragnets, modern-day general warrants that thwart every aspect of the Constitution’s privacy safeguards. Not even outmoded interpretations of the third-party doctrine can (or should) be invoked to save them.

The good news is that we now live in the Chatrie era. In that recent decision, the U.S. Supreme Court clearly articulated a fundamental right to certain forms of digital privacy, specifically regarding location tracking (including geofencing, the whole raison d'être for those shiny new Texas spy SUVs).
​
In short, this practice of roving mass surveillance is ripe for a challenge in court.

​When PPSA last examined Canada’s proposed Lawful Access Act, we described how it could undermine encryption and endanger privacy worldwide. Now Sen. Ron Wyden (D-OR) is warning that the bill could also enable the Canadian government to conscript American technology companies into spying on Americans.

Bill C-22, which has passed Canada’s House of Commons and is now before the Canadian Senate, would grant authorities in Ottawa sweeping new surveillance powers. It would require service providers to retain sensitive user metadata, such as location information, for up to a year. It could also force companies to alter their systems to facilitate government access or install tracking capabilities and security backdoors. 

In a letter to Secretary of State and acting National Security Adviser Marco Rubio and acting Attorney General Todd Blanche, Sen. Wyden writes that the bill “threatens to weaponize American technology infrastructure by enabling the Canadian government to force U.S. companies to secretly facilitate surveillance of Americans, while systematically undermining the security of their products.”

A foreign government could conceivably pressure an American company to retain special backups of an American target’s data, relocate encryption keys to a jurisdiction where they could be seized, or deliver government spyware through a compromised software update.
The target could be anyone.

As Sen. Wyden warns, “U.S. law does not explicitly prohibit American companies from secretly facilitating foreign surveillance of U.S. citizens – even if the target is the President or another senior U.S. government official.”

“This is not a dilemma of U.S. companies being caught between conflicting international legal obligations,” he writes. “It is a glaring statutory vacuum.” 

Canada is negotiating an agreement with the United States under the CLOUD Act, which would enable Canadian authorities to seek some data directly from American companies. Sen. Wyden urges the Trump Administration to use those negotiations to obtain “ironclad, explicit prohibitions” against Canadian demands that U.S. companies reengineer their products or facilitate surveillance of Americans.

As PPSA has warned, there should be no encryption backdoor reserved for trustworthy governments. Any vulnerability can be exploited by hostile governments, criminals, and increasingly capable artificial intelligence systems.

Sen. Wyden puts the principle succinctly: “Bilateral trust with our closest intelligence partners cannot be built on the secret subversion of American cybersecurity infrastructure.”
​
The Trump administration should heed his warning. Canada must not be permitted to turn American technology companies into instruments of secret spying on Americans.

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

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

 

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

 

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

 

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

 

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

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

​Imagine if one private company didn't just sell equipment or software to your local police department, but became the operating system for policing itself – managing body camera footage, dispatch records, 911 calls, jail bookings, license plate reader databases, AI analytics, and more, all through a single cloud platform.
 
This dystopian vision, taken to an extreme in the classic film RoboCop – in which a predatory corporation acquires an entire police department – is arriving faster than most Americans realize. The integration of business and policing raises new concerns about privacy, accountability, and the concentration of surveillance power.
 
Vendors are pressing this “operating system” model on police departments, seeking to collect, manage, control, analyze, and optimize the flow of data that contains sensitive information on millions of Americans – including not just suspects, but also their families, neighbors, co-workers, friends, and crime victims.
 
A new white paper released by the American Civil Liberties Union and authored by Jay Stanley with Lauren Yu details all the reasons why the integration of corporate and police priorities can degrade the traditional constitutional protections built into policing.
 
Weak protections for AI-derived data
Stanley and Yu note that with so much collected data, “vendors are pushing AI hard on their law enforcement customers as a shortcut to squeezing value out of data. Examples include video analytics, AI-assisted police reports, and algorithmic inspection of license plate reader data for ‘suspicious’ movement patterns.”
 
What uses might this valuable data serve beyond law enforcement? Many companies pledge not to share, sell, or access data except in tightly controlled, audited circumstances for support and maintenance. 
 
Stanley and Yu write: “The problem is the lack of barriers to violating these promises and the near impossibility of discovering if those clauses are violated because of how easy it is to copy, transfer, and share data without leaving any fingerprints, especially within an opaque private company.”
 
Lack of checks and balances
 
Law enforcement answers to democratically elected officials. Transparency and accountability are enforced by Freedom of Information Act (FOIA) requests, email and other data retention requirements, and the budgetary and policy oversight of city councils, oversight boards, internal affairs bureaus, and other officials.
 
Companies lack these checks and balances. Local governments are learning to offload responsibilities to the private sector to shield themselves from public scrutiny. In New Orleans, for example, the police avoid local regulations on facial recognition by using a private organization to apply that technology on their behalf.
 
And when something goes wrong, the authors note, “you can’t use voter pressure to make a bad company ‘resign’ the way a sheriff might do if they do something bad.”
 
Bias toward prosecution
 
The mixture of profit and prosecution could degrade traditional safeguards in police work. Stanley and Yu write:
 
“Vendors in the law enforcement space have an incentive to demonstrate that their products are great at helping police catch criminals. This means that they have a financial incentive in being able to say that their products led to a high number of arrests and convictions – they gain no marketing advantage when crime is low and people go free.”
 
Vulnerable honeypots
 
For decades, police records tended to remain scattered among thousands of local departments. But cloud computing changes that equation. Information that once sat on local servers is increasingly stored in centralized corporate systems, creating nationwide repositories of highly sensitive data.
 
With so many companies centralizing and storing police data in the cloud, vendors are creating “honeypots” of sensitive data attractive to hackers. “Worsening the situation is the fact that good cybersecurity costs money, and yet most costs of breaches often fall not on the company but on ordinary people.”
 
As surveillance technologies become more powerful and more interconnected, policymakers should ensure that constitutional protections evolve just as quickly. Otherwise, the greatest expansion of police surveillance may come from corporations quietly becoming policing’s digital backbone, if not its brain.

​It’s a bookmark that only privacy advocates would ever think of creating. Maintained by Kansas Watch, it’s a catalog of abuses related to automated license plate readers, called the ALPR Abuse Library. Since 2019, there have been 64 documented incidents in 26 jurisdictions.

Of those, 20 involve stalking or targeting (along with eight other distinct categories of violations). Here are a few of the recent stalking entries, each of which the site links to original sources:

• Former officer used police databased to track his mistress and harass her with thousands of texts and phone calls

 

• Ex-detective misused police resources to track spouse; child sex abuse material found

 

• Sheriff used Flock cameras to search for wife’s vehicle

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• Police officer allegedly used department database to stalk woman he met on at a television shoot

According to the Institute for Justice (IJ), which also tracks such police-related incidents, the root cause is one we’ve discussed many times: the complete absence of a search warrant as required by the Fourth Amendment, which, warns IJ, “predictably allows officers to abuse their access to these systems for things like stalking romantic partners.”

For those concerned about potential abuse of ALPR systems (particularly those made by Flock Safety), one place to begin is to see if your license plate shows up in publicly available search databases such as Have I Been Flocked. IJ also operates an education and advocacy site devoted to fighting the unconstitutionality of ALPR technology, called The Plate Privacy Project.

The warrant requirement in the Constitution precedes the electronic era. The Founders’ primary reason for including it was a concept as familiar then as it is relevant now: Searches that are overly broad, unsupported by cause, and conducted without oversight are sure to be abused – a danger the Founders knew was ripe for exploitation in any age.
​
When police can misuse ALPRs for petty, personal reasons, the eventual abuse of these systems by government officials for larger political reasons is virtually assured.

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

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

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

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

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

History teaches us that such fears are not hypothetical.

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

Nor is religious surveillance a mere relic of the past.

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

 

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

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

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

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

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

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

​When you hear of a new surveillance program being marketed as a child-safety initiative, give it particularly close scrutiny. History shows that the narrower and more compelling the stated justification for a surveillance plan, the broader and more outlandish the surveillance will actually be.

A newly reported example comes from BusPatrol, a company that has installed AI-powered camera systems on more than 40,000 school buses in 24 states. The cameras have been marketed as a way to identify drivers who ignore the fold-out “STOP” arm signs from buses and illegally pass them while stopped. 

Joseph Cox of 404 Media reports that BusPatrol is now planning a dramatic expansion of its mission. Leaked company documents reportedly show plans to convert school buses into roaming automatic license plate reader (ALPR) platforms that would capture information on every vehicle a bus passes, regardless of whether any crime or traffic violation occurred. The resulting data would then be sold to law enforcement. 

A system designed to document a specific violation at a specific moment is fundamentally different from a system that continuously records the movements of everyone nearby. In effect, school buses would become mobile surveillance vehicles.

Under the proposal, cameras would photograph vehicles, record their license plate numbers, and attach GPS location data. Law enforcement and possibly other actors could then query those records to reconstruct a vehicle's travel history. As privacy advocates have long warned, tracking a car often means tracking a person. 

These bait-and-switch tactics are familiar.

After the attacks of September 11, Americans were told that extraordinary surveillance programs were necessary to prevent terrorism. Many of those authorities later expanded far beyond their original scope. Section 702 of FISA was enacted to monitor foreign threats overseas, yet the communications of millions of Americans became subject to warrantless searches.

From the UK to Congress, we’ve seen how the fight against child sexual abuse material has been used as a shield to threaten the encryption that protects women and children from stalkers, journalists from vengeful politicians, businesses communicating about proprietary information, and millions of law-abiding Americans who want to have a digital conversation without Big Brother listening in.

Government agencies have repeatedly justified the acquisition of vast quantities of personal data by pointing to legitimate public concerns, only for those powers to evolve into broader surveillance tools.

BusPatrol's reported plans follow the same trajectory. A narrowly tailored safety program aimed at preventing children from being struck by passing vehicles could become a platform for collecting location information on millions of ordinary Americans who have done nothing wrong.

The danger is not merely the collection of data. It is the normalization of surveillance infrastructure. Every new camera network creates pressure to find new uses for the information it gathers. Indeed, BusPatrol’s internal documents suggest that this latest move is in response to investor demands for new revenue streams.

Protecting children is a worthy goal. Turning school buses into rolling location-tracking platforms is not.
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Americans should be wary whenever government agencies or private contractors ask them to trade away privacy in exchange for safety. Proposals like this need their own mounted “STOP” arm signs.

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

• How often did these improper queries occur?

 

• How many Americans were affected?

 

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

 

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

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

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

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

 

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

 

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

 

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

 

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

 

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

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

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

• What Is Section 702?

 

• Whose communications does the government collect under Section 702

 

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

 

• Are backdoor searches constitutional?

 

• How have intelligence agencies abused backdoor searches?

 

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

 

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

 

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

 

• Would a warrant requirement harm national security?

 

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

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

​We don’t condone vandalism. But we have to admit that a recent event in the Texas Hill Country town of Bandera showed a flash of the spirit of the Boston Tea Party, or, perhaps more appropriately, of the settlers in the East Texas town of Gonzales who, in 1835, cried “Come and Take It!” while firing their small brass cannon at the Mexican Army.

We’re talking about the repeated efforts of the Bandera city council to install eight AI-enhanced license plate readers on poles around the town, only to have local residents use saws to cut the poles in half and take down the cameras. After several rounds of this rebellion, the city council finally gave up and ended its contract with Flock Safety, a company that is building a national network of cameras that track cars and store the daily movements of millions of Americans.

Brian McManus chronicles this contest of wills in Courier Texas.

“Bandera is the cowboy capital of the world,” one resident told McManus. “We don’t need to implement mass government surveillance in our town.”

McManus reports that Bandera has a lower crime rate than both the Texas and national averages. Banderans just didn’t like the idea of “ordinary people going about their ordinary lives in a town where everybody already knows everybody.”

There is one aspect of this story that touches on something of national significance. McManus writes:

“This was not a left-versus-right argument. It was rooted in community and the instinct toward personal liberty and suspicion of government overreach that defines much of rural Texas political identity. The irony that a surveillance state program backed by Republican state grant money ran headlong into Republican small-town resistance was not lost on people in the [city council] room.”

While Congress debates surveillance policy, it is clear that national concern about the need to protect the privacy and constitutional rights of the American people cuts across party and ideological lines.

Advocacy for reform amendments to FISA Section 702 comes from Rep. Andy Biggs (R-AZ) and Rep. Zoe Lofgren (D-CA), as well as Sen. Mike Lee (R-UT) and Sen. Ron Wyden (D-OR). Can you think of any other issue that unites staunch conservatives and stalwart liberals?

All of them and many more are backing measures to keep the government’s hands off Americans’ personal data without warrants, as the Constitution requires.
​
They might agree with one Bandera resident who told McManus that surveillance “just doesn’t pass the vibe check.” Neither does the federal government’s warrantless collection and inspection of Americans’ personal data.

“Even committed border watchers who favor stronger enforcement of immigration rules should have qualms about the deployment of surveillance state capabilities by the government,” writes J.D. Tuccille in Reason. “Tools and techniques adopted for one purpose are inevitably redirected to others.”

Tuccille goes on to round up recent news articles that underscore his point.

• “In the battle against illegal immigration, the U.S. is spending hundreds of millions of dollars on tools that give federal agencies easy access to the home and workplace addresses of American citizens, their social-media accounts, vehicle information, flight history, law-enforcement records, and other personal information, as well as data to track their daily comings and goings,” write Shane Shifflett and Hannah Critchfield in The Wall Street Journal.

 

• The Georgetown Law Center on Privacy & Technology reports that by 2022, Immigration and Customs Enforcement (ICE) had “scanned the driver’s license photos of 1 in 3 adults,” “had access to the driver’s license data of 3 in 4 adults,” “was tracking the movements of drivers in cities home to 3 in 4 adults,” and “could locate 3 in 4 adults through their utility records.” We can only imagine how these capabilities have expanded in the subsequent four years.

 

• “ICE is currently using the Mobile Fortify app in the field to identify anyone they happen to encounter and want to identify,” warns the Electronic Privacy Information Center (EPIC). “By pointing their phone at an individual for face identification, ICE can query various databases and obtain data related to ‘individuals, vehicles, airplanes, vessels, addresses, phone numbers, and firearms.’”

EPIC reports that scanned protesters have lost TSA PreCheck and Global Entry status for travel.

Tuccille writes: “In itself that may not sound like a big deal, but it means the federal government is willing to identify and retaliate against people for exercising constitutionally protected rights. That can extend to even more severe consequences.”

As Congress returns this week to resume the debate on Section 702 of the Foreign Intelligence Surveillance Act – an authority enacted by Congress to enable the surveillance of foreign threats on foreign soil, but often used to spy on Americans – Members would do well to take stock of just how much the surveillance state has grown.

Tuccille concludes: “Ultimately, there’s no such thing as a single-purpose surveillance state. There’s just the misuse and abuse of the government’s ability to monitor and identify people who come to its attention.”

​As Congress debates surveillance policy, there is increasing focus on the role of artificial intelligence in weaving together disparate strands of information to create “total informational awareness.” The elements of an American surveillance state are clearly falling into place.

To illustrate this danger, we often point to revelations from the secret FISA court, reports from the intelligence community, and surveillance scandals unearthed by journalists. But today we point to the words of Jimmy Carr, a British and Irish comedian.

There is no denying that Carr is truly funny, though his jokes can sometimes cross the line from edgy to reprehensible. Carr is also truly bright. This Cambridge graduate shared some sobering insights about the nature of AI and freedom on the UK free speech podcast Triggernometry clips.

When asked about the threat of AI, Carr noted the “one rule of history – unintended consequences.” He continued:

“People are worried about the wrong thing with AI, in my humble opinion. People are worried about losing their job. It’s a perfectly valid thing to worry about, but I think you’re worried about the wrong thing …

“The cost of running an authoritarian regime, like the Stasi, has come down by 10 orders of magnitude in the last three years … When you had to run their Stasi, if you were in East Germany back in the day, it was like 20 percent of the GDP [spent] on spying on people and keeping an eye out.

“Now you’ve got a bunch of cameras, you’ve got AI, everyone’s got a phone on them, and we’re tracking everything at all times. Okay? That’s a worry, because we live in liberal democracies, and we’re very lucky too. But our leaders, how long will they resist that temptation?”

He then turned to the dangers of digital identification.

“There’s lots of lessons from history about digital ID, that we should take very seriously. Because even if the good guys are in charge when it comes in, well, at what point does the world turn and people vote for a bad guy? And then they have the power.”

Carr underscored this point with one devastating observation:

“More Jews died in the Netherlands than in France. You know why? Better records.”

Carr quoted Thomas Sowell, who said: “There are no solutions. There are only tradeoffs.” Carr added that “safety and freedom” are the tradeoffs of our times. He asked: “Where do you want to draw that line?”

Carr concluded:
​
“Civilization is a clearing in the forest. We need to stand very firm against any authoritarian regime, whether it comes from the left or the right, whether it comes from a good place or a bad place. We have to resist that.”

The Associated Press last year wrote a landmark series of six stories about the role that U.S. tech firms play in global surveillance, particularly in China. “Made in America, Watched Worldwide,” just won a Pulitzer for international reporting. The award is richly deserved, honoring the efforts of multiple journalists who worked painstakingly on the project for three years.

Celebrating their efforts is an opportunity for all of us in the privacy community to reflect not only on the AP’s key findings but also on the ominous realization that the technology described is homegrown. In other words, it can just as easily be sold to U.S. agencies and directed at the American people. That’s over 90,000 distinct entities when you add up the total number of federal, state and local government operations.

In other words, U.S. technologists not only helped design the Chinese surveillance state, we’re also not that far from having one ourselves. This danger is growing more acute with the ability of AI to transform information into actionable knowledge and to turn individual data points into personal dossiers.

So let’s think about that as we briefly summarize the AP’s topline findings. Everything in this list is all-too-easily capable of being implemented here in the United States:

• Silicon Valley Is the Architect: The sprawling digital cage used to monitor and suppress millions in China was designed and powered by American tech. And U.S. tech didn’t just sell generic hardware that was misused after the fact. AP demonstrated that Big Tech actively pitched their products as tools for social control, providing the blueprint for automated, algorithmic repression.

• Surveillance at Scale: Mass surveillance no longer requires specialized hardware; everyday cloud infrastructure can process staggering amounts of video surveillance footage. Ubiquitous, mundane IT equipment is being repurposed to form an active monitoring grid. And data such as fingerprints and facial recognition scans can be readily synthesized into centralized tracking databases.

• Algorithms of Suspicion: The repression blueprint is already being operationalized on American roads through predictive intelligence networks that monitor the daily movements of millions of drivers, analyzing travel patterns to flag individuals as “suspicious.” Targeted human observation based on probable cause is increasingly being ceded to the opaque calculations of a machine.

• China Is Everywhere: Beijing is leveraging U.S.-engineered AI and high-end hardware to conduct transnational repression on American soil. Systems designed in Silicon Valley and perfected in China are being used to track individuals within the United States, projecting the latter’s authoritarian power into American suburbs. It’s already too late for Tibetans, even in Nepal. One refugee in that mountain kingdom said: “There are cameras everywhere. There is no future.”

• AI Goes To War: The rapid integration of Silicon Valley tech into lethal military operations exposes a chilling reality: Once these systems are “battle-proven,” they can be refined and marketed to militaries and law enforcement authorities anywhere. Domestic policing could quickly become a RoboCop scenario, in China and in California. The line between surveillance and lethal force is blurring.

One of the heroes of AP’s reporting is longtime Chinese activist Zhou Fengsuo. Arrested and imprisoned as a student leader during the Tiananmen protests, the now-U.S. citizen Zhou testified before Congress in 2024, warning that the lack of privacy guardrails and meaningful reform “is a strategic failure by the United States.”  

Current legal guardrails on American surveillance are not keeping pace with advancing technologies and questionable partnerships unmasked in AP’s series. And that gap underscores the urgent need for robust reform of surveillance laws – before these untethered AI networks are fully (and permanently) turned inward.
​
Congress should take a deeper look into the technologies U.S. companies are selling to China and other adversarial nations – and how they are being deployed here. The rapidly escalating power of AI should especially make it clear why the House leadership proposal to extend FISA Section 702 for three years is unacceptable.

Short answer: Yes. Longer answer: Hell, yes.

Carter Page, a former foreign policy advisor to the 2016 Trump presidential campaign, will be paid $1.25 million to settle claims for surveillance that resulted from an FBI that knowingly made untruthful claims against him before the secret Foreign Intelligence Surveillance Court (FISA) Court.

At a time when history is measured in news cycles, this may seem like ancient history to many in Washington. And yes, the Page debacle concerned Title I of FISA, a different surveillance authority from the FISA Section 702 authority, whose reauthorization is now the subject of intense debate in Congress. But the Carter Page ordeal is well worth revisiting. It does, in fact, have a lot to say about the current Section 702 controversy.

The Essentials of the Carter Page Debacle

The FBI obtained four improperly obtained surveillance orders from the secret FISA Court to surveil Page. Under the law’s “two hop” rule, these orders not only allowed the FBI to spy on Page; they also allowed the FBI to spy on anyone Page communicated with (such as the Trump campaign manager) and anyone that person communicated with (the candidate himself).

One doesn’t have to be an admirer of Donald Trump to find it beyond dangerous for the FBI to investigate a presidential campaign, and ultimately the candidate himself, in the middle of a national election. This is especially true when we consider that the whole investigation was predicated on lies the FBI told the court, accompanied by a forgery in the form of a document altered by an FBI attorney.

Does that sound overwrought? Consider: The four secret surveillance orders were the direct result of the Department of Justice and the FBI committing acts of omission and commission in their representations to the FISA judge in 2016 and 2017. Department of Justice Inspector General Michael Horowitz – a Democrat, by the way – conducted an exhaustive investigation that identified 17 “significant inaccuracies and omissions in each of the four applications.”

The FBI, in its surveillance application for Page, did not inform the court that the basis of its suspicions – an intelligence report produced by a dodgy ex-MI6 officer, Christopher Steele – was something that the Bureau itself had concluded was completely unreliable. Indeed, the “Steele dossier’s” most salacious report, that Russian intelligence had a “pee tape” of Trump cavorting with micturating prostitutes in a Moscow hotel room, was later determined by Horowitz’s investigation to have started as a bar joke.

Not only did the FBI know that the basis for probable cause presented to the court was sketchy, but it also falsified evidence. Former FBI lawyer Kevin Clinesmith would later plead guilty to altering an email from the CIA that he had submitted as evidence to the court. What had been altered? The court asked if Carter Page had a connection to the CIA. He had, in fact, been a secret operational contact for the CIA, which had given Page its highest rating for dependability. The FBI attorney altered that CIA document, changing it from affirming Page’s relationship with that agency to denying it.

Some Obvious Conclusions

We admit to feeling a little personal about this. PPSA attorneys have represented Page in his quest for justice. We can attest that Page – who was subjected to repeated FBI interrogations and a day-long examination before a grand jury – spent months in a lonely, personal hell. Had Page made the slightest mistake in his recollections, he could have been sentenced to years in federal prison.

He deserves every penny of this settlement.

But the takeaway for the public and every Member of Congress – Democrats as well as Republicans – should be what this story tells us about Section 702. It has been revealed that under Section 702, the FBI secretly surveilled U.S. Senators and U.S. Representatives, a state judge, political and religious organizations, and journalists.

If the FBI is willing to be this disingenuous before a federal judge, just imagine what it might be willing to do with the communications of everyday Americans obtained by Section 702 programs that are usually warrantless and lack direct judicial oversight of individual queries.

Far from being ancient history, the Carter Page ordeal is a constitutional cautionary tale – one Congress ignores at the peril of every American’s Fourth Amendment rights.

The U.S. Supreme Court set the first warrant requirement for Americans’ location data in 2018. Chief Justice John Roberts, writing for the majority in Carpenter v. United States, declared that when the government “tracks the location of a cell phone it achieves near-perfect surveillance, as if it had attached an ankle monitor to the phone’s user.”
 
Though the Court’s ruling set a warrant standard for the extraction of historic cell phone data from cell towers, Carpenter failed to become a general precedent for using other means to geolocate Americans – such as tracking people through their phones.
 
On Monday, the U.S. Supreme Court heard oral arguments in a case that has the potential to become the next landmark ruling. If the sharp questions of the Justices are any indication, they may well limit the government’s ability to conduct large geolocation sweeps that can compromise the privacy of large numbers of Americans.
 
The case involves Okello Chatrie, convicted of bank robbery near Richmond, Virginia, after local authorities used a geofence warrant for the area of that crime and picked up Chatrie’s phone at the scene. Hundreds of other people within the area geofenced by police were also pinned, including guests at a Hampton Inn, residents in an apartment house and a retirement home, and diners at a Ruby Tuesday restaurant.
 
What’s the big deal, you ask, if this maneuver helped catch a bank robber?
 
As a lower court judge noted, with such a procedure – this time a warrant issued to Google – everyone within the designated perimeter “has effectively been tailed.” Even when such technology is used for a clear purpose, such as locating a bank robber, the precedent opens the way for the government to track Americans’ associative activities, from protests to political activity to worship. In its questioning, the Supreme Court recognized the Orwellian possibilities of this technology.
 
“What’s to prevent the government from using this to find out the identities of everybody at a particular church, a particular political organization,” Chief Justice Roberts asked the government’s lawyer. “What are the restraints that would prevent that from becoming a problem?”
 
Adam G. Unikowsky, Chatrie’s attorney, characterized geofence warrants as fishing expeditions that “search first and develop suspicions later.” Unikowsky told the Justices:
 
“The technology may be novel, but the constitutional problem it presents is not. The potential for abuse is breathtaking: The government need only draw a geofence around a church, a political rally or a gun shop, and it can compel a search of every user’s records to learn who was there.”
 
The Justice Department lawyer had a tough time arguing that Chatrie did not have a reasonable expectation of privacy for location history data that his phone shared with Google. Justices Neil Gorsuch and Sonia Sotomayor asked questions showing a concern that the government’s position could be expanded to include emails, photos, and documents, as well as location data.
 
The Justices also questioned the extent to which Americans are even aware that their cell phones enable tech companies to track their locations in a way that can be shared with the government.
 
These questions echoed the PPSA amicus brief, in which we told the Justices: “Letting a plumber into your house to fix a sink does not mean you have no expectation of privacy when the police come knocking.” 
 
A little levity came to the proceedings when Justice Amy Coney Barrett said she was shocked by how many ads she saw on her phone that were triggered by her visits to specific locations.
 
“I need to check my location settings, plainly,” she said, triggering laughter throughout the courtroom.
 
Judging by the questioning, it appears that this case may, at the very least, lead to some tightening of mass geofencing. PPSA hopes that all the Justices will agree with our brief in which we declared: “The Founders would have been shocked to see privacy brought to this sorry state.” 

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

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

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

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

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

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

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

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

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

We hear the same sentiments from innumerable Republicans as well.

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

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

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

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

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

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

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

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

The House Has Alternatives

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

Contact Your Representative

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

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

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

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

That’s nonsense – hogwash, even.

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

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

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

Here are three expert resources to do just that:

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

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

Why Congress Must Act

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

How Does the Data Broker Loophole Violate Our Privacy?

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

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

Good Reform Proposals on the Table

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

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

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

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

Security and Liberty Are Not Opposites

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

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

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

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

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

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

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

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

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

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

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

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

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