​The federal judiciary is beginning to catch up with how far and how fast technology is taking us from the Constitution and its guarantees of our civil rights.

In June, the U.S. Supreme Court held in Chatrie v. United States that the government conducts a Fourth Amendment search when it obtains a target’s cellphone location history through a geofence warrant.

More recently, a federal judge in Oklahoma found that a deputy sheriff’s warrantless search of historical location information collected through Flock Safety’s automated license-plate reader network was unconstitutional.

And little more than a week ago, the U.S. Court of Appeals for the Fourth Circuit held that police use of a cell-site simulator to pinpoint a cellphone’s location constitutes a Fourth Amendment search subject to the warrant requirement. Make no mistake, this is a landmark decision that marks the first time a federal appeals court has squarely resolved that question. 

Cell-site simulators are devices that impersonate cellphone towers, tricking nearby cellphones into transmitting identifying signals. These devices, often called “stingrays” after one brand of simulators, allow police to pinpoint the location of cellphones.

PPSA has long warned that stingrays reach beyond a targeted suspect, sweeping in nearby devices and raising serious concerns about surveillance of peaceful protesters. FBI nondisclosure agreements have also helped conceal their use from defendants and courts. 

The case decided by the Fourth Circuit concerns Baltimore police officers who used a simulator called Hailstorm in 2014 to locate Kerron Andrews – suspected of attempted murder – inside a particular townhouse. Information from his cellphone provider had narrowed his location to several blocks. The simulator took officers to his front door. Its use remained undisclosed to his counsel for a year.

Judge Nicole Berner, writing for the majority joined by Judge Toby Heytens, explained:

“This technology is akin to sense-enhancing technology that allows the government to peer into a private home, which the Supreme Court has repeatedly held requires a warrant.”

The Fourth Circuit followed the logic of Kyllo v. United States (2001), in which the Supreme Court ruled that police use of thermal-imaging technology to detect heat emanating from a home constituted a Fourth Amendment search. The opinion in Andrews v. Baltimore City Police Department found that using a cell-site simulator to locate Andrews inside a home was similarly invasive.

It didn’t help the government’s case that the police tried to abide by their NDA with the FBI by hiding their use of the cell-site simulator behind a warrant application for a different kind of surveillance, called a pen register/trap and trace device.

The Fourth Circuit underscored the importance of its opinion:

“Despite the ubiquity of cell-site simulators, no federal court of appeals has squarely addressed whether law enforcement’s use of this technology for real-time tracking of a cellphone constitutes a search for purposes of the Fourth Amendment. Today, we hold that it does.” 

This was not a personal victory for Andrews. Despite having spent two years in pretrial detention, Andrews’s civil suit against the police department and detectives cannot proceed. The Fourth Circuit ruled that because the constitutional issue was not clearly established in 2014, the police are entitled to qualified immunity. The majority did not decide whether the existing court order, which initially narrowed the search to a few blocks, satisfied the constitutional warrant requirement.

This case is another sign that courts are sharpening constitutional boundaries. Police cannot evade the protections surrounding a home by electronically reaching inside it. And Americans should not have to choose between carrying a cellphone and enjoying their privacy.
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PPSA applauds this ruling. The next step must be meaningful accountability and full disclosure when stingrays are used. A secret surveillance tool must never become a secret exception to the Fourth Amendment.

Imagine police searching every home in a neighborhood because they believe one holds evidence of a crime. Or opening every safe-deposit box in a bank to find one person’s contraband.

The Fourth Amendment forbids that approach. A warrant must particularly identify the place to be searched and the persons or things to be seized. And the search must be based on probable cause. Investigators cannot search a crowd first and then decide which individuals they had reason to investigate.

That principle runs through PPSA’s amicus brief in Chatrie v. United States, now before the Fourth Circuit, and a similar PPSA brief in New Jersey v. Bryant before the Supreme Court of New Jersey. In the Chatrie case, a geofence warrant required Google to produce records of devices detected within a geographic boundary. In Bryant, a “tower dump” search sought records from cellular providers of devices that connected to a specified group of cell towers during a given period. Both methods exposed the records of people who were not suspected of wrongdoing. 

In Chatrie, the warrant initially returned the location histories of 19 people near a Virginia bank. Officers then selected accounts for wider searches before obtaining identifying information for three users. As PPSA told the Fourth Circuit, “A tailored set of results is not a tailored search.” The government had already searched protected records to decide whose records to examine more closely.

That process reverses the sequence spelled out by the Constitution, under which a neutral magistrate must decide in advance what the government may search. The warrant cannot allow officers to search first and then use what they discover to decide whose records merit another search.

PPSA told the Fourth Circuit that the Constitution’s particularity requirement must be satisfied before the search, not through narrowing after the search. We also told the court:

“This warrant fails at each step because the warrant – not the officer, and not the search itself – must identify the object of the search before the search begins.”

The New Jersey search reversed the constitutional process on a staggering scale. Investigating a home break-in, police sought records from four cellular providers. The resulting tower dumps swept up records associated with 10,477 people, using nearly two dozen towers and 79 antennae across almost 200 square miles.

The search reached devices more than 11 miles away – all to produce two suspects. Those thousands of other people did not become proper search targets simply because their phones connected to one of the specified towers. 

The state compares this sweep to searching a cluttered home, where officers must sort through belongings irrelevant to the purpose of the search. But a warrant to search a home rests on probable cause tied to that home. Encountering irrelevant items inside it does not authorize officers to search thousands of other people’s homes. Likewise, the fact that relevant records may be mixed with irrelevant ones cannot supply probable cause to obtain everyone’s records.

The same error appears in both cases – treating the investigation’s eventual result as proof that its initial reach was justified. Finding suspects after examining thousands of people’s records cannot retroactively make the search particular.

Every new technology will present a new twist. Courts should not invent a new theory of what counts as a lawful search whenever police gain a new technique to collect information. Geofences and tower dumps are searches that remain subject to the Constitution’s enduring requirements of probable cause and particularity.
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Above all, we are telling the courts that officials cannot select their own targets for a search, supply their own justification, and set their own limits. A search warrant cannot write itself.

​Six weeks after the U.S. Supreme Court’s 6-3 opinion in Chatrie v. United States, it is just now becoming clear what a breakthrough opinion it actually was.

This ruling leaves an altered legal landscape, one in which courts have fresh opportunities to apply stringent constitutional scrutiny to many intrusive technologies, ranging from automated license plate readers to internet search histories.

At first, this ruling struck many legal observers as a welcome but modest expansion of Fourth Amendment law. Basing its conclusions on recent precedents, the Court held that whenever the government uses a geofence warrant to pinpoint an individual’s location history through cellphone data, it is performing a Fourth Amendment search.

Stanford Law School professor Orin Kerr has now written a sharp analysis contending that Chatrie’s apparently narrow ruling is, in fact, a “blockbuster” that offers the most “rhetorically broad vision of the Fourth Amendment” in 140 years. We think he is right.

Kerr writes that Chatrie “is an expansive pro-privacy opinion that advances new principles and throws into question a wide range of existing surveillance practices.”

The Principle of Consumer Perception

Much of Chatrie’s majority opinion was grounded in precedent, such as Carpenter v. United States. This 2018 ruling held that a warrant is required to track a person’s location history, while limiting that standard to location data collected from cell towers.

“But a close look shows that Chatrie recasts precedents at every turn,” Kerr writes. “Chatrie alters the applicable approaches, adopts new standards, and drops old distinctions.”

For example, a generation ago, the Fourth Amendment was widely understood to prohibit authorities from searching property and “effects” inside a home, a car trunk, or a suspect’s pockets without a warrant based on probable cause. Outside those protected spaces, authorities were – and are – generally free to tail people or rifle through their garbage.

Chatrie demolished this inside/outside distinction. Data held in the cloud can now enjoy a level of protection similar to that of a document in a desk in one’s home. Another way Chatrie goes beyond Carpenter is by bringing users’ perceptions into the equation. Kerr writes:

“It appears that a typical user’s perception of connection with data – generally a matter of app design and interface – can govern whether there are Fourth Amendment rights in the data after the data is disclosed.”

The Intimacy of Data as a Factor
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Kerr notes that the ruling introduces new concepts into Fourth Amendment law, holding that data generated by ordinary activities on cellphones cannot be presumed to be voluntarily disclosed to third-party tech companies. And Chatrie reorients Fourth Amendment law around the intimacy of private information, rather than the manner in which it was obtained.

Kerr quotes Justice Sonia Sotomayor’s concurrence in a prior case, in which she noted that GPS records contain a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

This reasoning from one justice in a 2012 case about GPS seems to have filtered into the majority’s thinking about technology in general.

What’s Next?

Where does the law go from here? Some courts will undoubtedly interpret Chatrie narrowly, restricting it to location data. Doing so, however, would ignore the broader implications of Justice Kagan’s majority opinion and its new standards.

We can expect conflicting rulings as lower courts try to apply Chatrie to automated license plate readers, tower dumps, IP addresses, subscriber information, internet search terms, blockchain transactions, and online undercover operations.
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If lower courts are true to Chatrie, they will recognize a constitutional imperative to apply the Fourth Amendment to curb the unprecedented power of new technology to expose the entirety of a human life. 

​When your daily movements are tracked by your cellphone, you likely have an intuitive sense that this is your private information, even if it is shared with Google or Apple.
 
The Supreme Court made that common perception a principle on Monday.
 
In a 6-3 decision in Chatrie v. United States, the Court ruled that you do, indeed, have an expectation of privacy against government intrusion as your mobile devices track your movements throughout the day.
 
Based on a Solid Precedent
 
Monday’s ruling strengthens and extends a principle established by the Court in Carpenter v. United States (2018), which found that law enforcement needs a probable cause warrant to obtain cellphone users’ daily movements from cell towers.
 
In Chatrie, in which police conducted a broad search of many people’s location histories in order to catch a bank robber, the Court is now setting a broad principle that promises to extend to cases regarding other forms of data held by companies in the cloud.
 
The Court found that Google’s Location History “resembles other private materials – think of emails, documents, photographs, or calendars – that even if stored on Google’s servers, a user reasonably views as his own. And as a result, that he reasonably expects to be shielded from the ‘inquisitive eyes’ of the government.”
 
How We Got Here
 
The Court had to weigh the implications of Carpenter against the Fourth Circuit’s finding that the defendant “did not have a reasonable expectation of privacy in two hours’ worth of Location History data voluntarily exposed to Google.”
The majority opinion declared that the comparisons between Location History and cell-site tracking “practically leap off the page.” Cell-site tracking places an individual within one-eighth to four square miles. Google’s Location History placed Chatrie within twenty meters. In addition to this data’s precision, the Court noted the government can retrospectively construct the movements of cellphone users, effectively placing them under surveillance before they can even think of committing a crime.
 
Monday’s majority opinion reiterated the Court’s observation that modern cell phones are “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
 
Justice Kagan’s Majority Opinion
 
Overall, the government contended that cellphone users voluntarily relinquish their data, that constitutional concerns should be applied on an app-by-app basis, and that the search was too brief to be constitutionally significant.
 
Justice Elena Kagan penned the majority opinion, which bitingly dissected each of the government’s arguments, starting with the assertion that our data sharing is voluntary. Justice Kagan noted that Google repeatedly prompts users to enable Location History. She wrote:
“The first prompt comes when a user initially establishes a Google account. If that spur is ignored, another will arrive when a user sets up a Google app – like Google Assistant, Google Maps, or Google Photos – on his phone or other device. Android (though not iPhone) users are specifically warned that their devices will not ‘work correctly’ unless they turn on Location History.”
 
What about the government’s claim that law enforcement accessing Location History should receive a Fourth Amendment “grace period” of some number of hours? Justice Kagan sardonically referred to this short grace period of a few hours as a “Constitution-free zone.”
 
At risk, she wrote, were “trips that a person is apt to think ‘indisputably private’ to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center … or the criminal defense attorney.”
 
Justice Kagan’s analysis tracked PPSA’s amicus brief, in which we held that “where the Fourth Amendment applies, it applies regardless of ‘the quality or quantity of information’ the government obtains.”
 
Justice Kagan also turned to how cellphone technology is actually used today to demolish the government’s idea of analyzing the constitutional implications of a search feature by digital feature. She wrote:
 
“The Government’s app-by-app, feature-by-feature method of granting Fourth Amendment protection misapprehends the very nature of modern cell-phone use. Pretty much everything a person does on a smartphone requires some kind of opt-in – an ‘affirmative act’ beyond ‘powering up’ to utilize a given app or service.”
 
Justice Kagan added:
 
“The Government wishes to disconnect all those [private] uses from the mere act of carrying a turned-on cell phone … with only the latter receiving assured Fourth Amendment protection. But that is to imagine that all of us are living in dumb flip-phone days. The point of carrying smartphones is what is on them” (emphasis added).
 
In its conclusion, the Court’s opinion harked back to Carpenter to define the access of historical location information, whether from a cell tower or Google’s Location History, as a search.
 
Monday’s ruling, however, does not fully resolve this case. The Supreme Court is sending the case back to the Fourth Circuit to define the probable cause requirements for every stage of the warrant process and to determine what the proper scope of the search should be.
 
Still, this is a monumental victory for privacy. Until now, as PPSA emphasized in our amicus brief, Carpenter has been treated by law enforcement as a narrow ruling that did not extend beyond location histories extracted from cell towers. Today’s ruling makes it clear that the Supreme Court intends to apply these Fourth Amendment principles across the digital landscape.

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.” 

​The Bill of Rights, the first ten amendments to the U.S. Constitution, has an underlying architecture in which each principle and right rests on – and reinforces – the others.

We hope that when the U.S. Supreme Court considers Chatrie v. United States, the Justices will see that surveillance, privacy, and expressive freedom are all facets of human liberty. At stake isn’t merely the correct application of the Fourth Amendment’s warrant requirement – that a neutral magistrate must find probable cause and specify the persons or places to be searched – but also the very conditions under which Americans can think, speak, and publish freely.

In Chatrie, the question is concrete: whether a geofence warrant – a broad data dragnet that compels companies to disclose the location information of all devices within a specific place and time – satisfies the Fourth Amendment. But the constitutional implications extend to conditions essential for our First Amendment freedoms to flourish.

Why the Supreme Court Should Not Try to Untangle Americans’ First and Fourth Amendment Rights

In an amicus brief, the Project for Privacy and Surveillance Accountability (PPSA) urges the Supreme Court to rein in geofence warrants. PPSA explains that these are “digital general warrants” incompatible with the Constitution because they invert the Fourth Amendment’s core design. Instead of naming a person or place based on individualized suspicion, they authorize the government to sift through massive data sets to identify potential suspects after a crime has occurred. This practice is not targeted policing. It is suspicionless data mining. 

These “reverse warrants” are consequential for more than location privacy. The same digital dragnets now being used to capture location data are being deployed in other contexts – keyword warrants, genetic data searches, and other forms of “reverse” searches that sweep up innocent Americans’ information merely because they intersected with a place, word, or characteristic.

The chilling effect is real – when people know that their movements, associations, or digital footprints can be turned over to the government without particularized cause, they think twice before seeking information, attending meetings, joining protests, or talking to journalists.

Thus, the Fourth Amendment’s privacy protections are not some narrow procedural right that disappears in the face of convenience. A world in which the government can collect comprehensive data about who attended a political rally or who was near a place of worship at a given time – without a warrant – is a world in which expressive liberty is chilled.

The Chatrie First Amendment Amici Make This Connection Explicit

The amicus brief filed by the Reporters Committee for Freedom of the Press, the Knight First Amendment Institute at Columbia University, and the Foundation for Individual Rights and Expression (FIRE) drills down on the point that Fourth Amendment privacy protections are also about protecting the informational foundations of a free society.

“Few investigative tools are more invasive than those that allow government to identify who met with a reporter,” Mara Gassman of the Reporters Committee for Freedom of the Press said in a statement. “There are longstanding safeguards designed to prevent law enforcement from intruding on confidential newsgathering because those intrusions endanger sources and impair public interest reporting.

“Dragnet location searches bypass those protections and threaten the independence of the press far beyond a single investigation,” Gassman said.

Without the Fourth Amendment’s requirement for particularized description of the targeted person or place, sweeping digital dragnets become the default – location data, communications, browsing behavior, social associations, and even journalists’ sources become vulnerable.

And when that happens, the law becomes a tool for monitoring who is where, talking to whom, and concerned about what. Even the perception of surveillance can dampen speech. When combined with the real potential for government access to rich troves of data, the effect is even greater.

The Constitutional Order Must Be Preserved

The Founders tied the First and Fourth Amendments together because a free society depends on privacy from arbitrary governmental intrusion and liberty of thought, speech, and press. When courts dilute the requirements for probable cause and particularity – as the Fourth Circuit did in Chatrie – they undermine that constitutional order. 
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Chatrie presents the Supreme Court with a chance to reaffirm the Fourth Amendment’s historic protections and avoid acquiescing to a surveillance state.

​The Project for Privacy & Surveillance Accountability has filed an amicus brief in the U.S. Supreme Court case United States v. Chatrie, warning that geofence warrants threaten not only Americans’ Fourth Amendment rights, but also our religious liberty and freedom of association.

PPSA previously urged the Court to hear this case and rein in geofence warrants as modern digital general warrants. These warrants compel technology companies to turn over location data for every device within a defined geographic area. Investigators then sift through the movements of potentially hundreds –sometimes thousands – of people in hopes of identifying a suspect.

Now that the Court has granted review, PPSA explains in its amicus brief that this dragnet surveillance exposes something far more sensitive than physical location. Location data can reveal belief, identity, and association.

“Geofence warrants also threaten core First Amendment freedoms by enabling surreptitious mass intrusions into sensitive spaces like places of worship,” the PPSA brief explains. 

A geofence warrant could easily capture the identities of everyone attending a church service, synagogue gathering, mosque prayer, or religious conference. In practice, that means the government could obtain what amounts to a list of worshippers.

The facts of the case illustrate the danger. The geofence search used by investigators in Chatrie encompassed Journey Christian Church in Midlothian, Virginia, capturing the location data of anyone present at the church at that time who carried a smartphone with Google location services enabled. 

That possibility raises profound First Amendment concerns. Location data can expose deeply personal religious information, including “faith affiliation; sacrament participation; belief shifts via changing attendance or visiting a new church; or involvement in recovery ministries.” 

The Supreme Court has long recognized that government surveillance of association can chill constitutional rights. Americans who believe their religious participation may be quietly recorded by the government may think twice before attending services or participating in religious life.

That chilling effect is precisely what the First Amendment was designed to prevent.

PPSA’s brief urges the Court to recognize that geofence warrants do more than raise Fourth Amendment questions about search and seizure. They also threaten the First Amendment freedoms that protect Americans’ ability to worship, gather, and associate without government monitoring.

After all, in the digital age, tracking where people go can reveal who they are, what they believe, and whom they stand beside.
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The Supreme Court now has the opportunity to make clear that the Constitution protects those freedoms from the reach of dragnet surveillance.

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

We share our most personal information with banks, telecoms, online search engines, and social media platforms. They know what we spend our money on, with whom we communicate, what we search for, and what we read and post. What could be more personal than that? So whenever we allow corporations to hold such personal information in digital form, can that be taken as a presumption that we’ve just given away our right to privacy?
 
Advocates for a sweeping interpretation of the “third-party doctrine” believe so. The very act of sharing our data, they hold, automatically relinquishes any right to privacy. The government thus doesn’t need to seek a probable cause warrant to review our private information, as the Constitution requires. This is not a matter of theory. A complex web of federal and state law effectively requires communications companies – through a risk of ruinous fines – to search through the content of their customers’ data, and report suspicious results to law enforcement.
 
This is what happened to a Wisconsin man, Michael Gasper. His data was flagged by Snapchat’s automated scans as child sexual abuse material, and reported to the National Center for Missing and Exploited Children. Based on this tip, a law enforcement officer was the first actor to perform a human review of the flagged file, though he did so without bothering to obtain a probable cause warrant, as the Fourth Amendment requires.
 
Initially, a lower court recognized that Gasper had a reasonable expectation of privacy in data he uploaded to the cloud through Snapchat. But the Wisconsin Court of Appeals held otherwise, reasoning that Snapchat’s Terms of Service – a lengthy contract most users “agree” to by checking a box, without ever reading it – eliminated any expectation of privacy. Now PPSA has filed a brief before the Wisconsin Supreme Court demonstrating that this ruling would undermine the heart of the Fourth Amendment. It would also defy a line of U.S. Supreme Court precedent that has long condemned overbroad interpretations regarding government access to third-party data.
 

• PPSA told the Wisconsin Supreme Court that the Fourth Amendment protects the degree of privacy that existed at the Founding despite advances in technology. This is not a reach. In the 18th century, Americans often entrusted their private property – and with it, their personal information – for limited uses by third parties, such as for custody, repair or transportation. Property owners maintained an expectation of privacy over their property, including their documents, when entrusted to a holder. In the 19th century, the Supreme Court held that letters sent through the mail “can only be opened and examined” under a warrant. Why should the cloud be treated any differently?

 

• Snapchat informed users, through its Terms of Service, that it performed automated searches for illicit material – essentially warning that it complies with the law. The state argues that this means Snapchat users have no expectation of privacy. But we told the Wisconsin high court: “when private reporting is mandated with significant penalties for noncompliance, such reports are state action, not private searches.”

 

• What about the eyeball search conducted by the law enforcement officer? We told the court: “But even if they were private searches, law enforcement cannot use them as a stepping stone to later, more expansive searches without complying with the Fourth Amendment.”

We reminded the Wisconsin Supreme Court that the U.S. Supreme Court in Carpenter v. United States held that the government did not have the right to warrantlessly track a suspect’s location through historic call records.
 
We urge the court to realize that we can protect children from exploitation and abuse while taking the time to obtain a warrant based on probable cause. Otherwise, policy will continue to subject the private data of all Americans to warrantless searches.
 
The ransacking of our cloud-based data is much like the “general warrants” of the colonial era, when agents of the Crown could rifle through anyone’s documents at will. This practice was one of the prime outrages that sparked the American Revolution. We should not tolerate the government’s general warrants today.

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

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

 

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

 

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

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

​The U.S. Supreme Court this week granted a petition for review in what will be the first case that the Court has agreed to hear addressing the scope of the Fourth Amendment’s warrant requirement since 2021. The case seeks clarity on whether the so-called “emergency-aid” exception to the Fourth Amendment requires police to have probable cause that an emergency is ongoing.

After police officers learned that William Case of Montana had threatened suicide, they entered his home without a warrant and seized evidence later used to convict him of a felony. Because the officers “were going in to assist him,” they felt unrestrained by the Fourth Amendment’s warrant requirement even though they did not actually believe that he was in any immediate danger since he was attempting to commit suicide at the hands of the police.

This Court had not reaffirmed the sanctity of the home since Caniglia v. Strom (2021), which found that allowing warrantless entry into the home for community caretaking – duties beyond law enforcement or keeping the peace – would have been completely at odds with the privacy expectations and demands of the Framers.

PPSA, which filed the only amicus brief in William Case v. State of Montana, informed the Court that if now upheld, such warrantless intrusion would inevitably lead to warrantless inspection of the very personal information on Americans’ smartphones and other digital devices.

In our brief, PPSA warned the Court of the “diluting effect such a low bar for emergency aid searches” would cause in other contexts – especially regarding digital devices. PPSA told the Court:

“Such devices hold vast amounts of personal information that, historically, would only have been found in the home. Lowering the burden of proof required to justify the warrantless search of the place the Constitution protects most robustly would lead law enforcement and the courts to dilute protections for other, less historically safeguarded areas, such as electronic devices, which would be devastating to the privacy of Americans …

“If the government may enter the home without a warrant based only on a reasonable belief, far short of probable cause, that an emergency exists, the government may treat electronic sources of information the same way, posing an even greater threat to privacy and the ultimate integrity of the Fourth Amendment. The insidious branding almost writes itself: ‘Big Brother’ may be ‘watching you,’ but it’s for your own good!”

PPSA’s brief also made clear the long history of elevated protection of the home in both American law and English common law. By the 17th century it was established law that the agents of the Crown were permitted to intrude on the home only in a narrow set of extreme circumstances, and only when supported by strong evidence of an emergency that corresponds to at least probable cause. PPSA wrote that if the new emergency standard is allowed

“Seemingly benevolent searches would then become an engine for criminal prosecutions even though no warrant was ever obtained, and no probable cause ever existed. The emergency-aid exception would thus become a license for the government to discover criminal activity that – in all other circumstances – would only have been discoverable through a warrant supported by probable cause.”
​
In Caniglia, the Court unanimously restricted the community care exception to the Fourth Amendment. PPSA will report back when the Court holds oral arguments on the emergency-aid exception in Case v. Montana.

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

​“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter …”
                                                                        William Pitt the Elder, 1763
 
The U.S. Supreme Court in 2021 reaffirmed the sanctity of the home in Caniglia v. Strom, restricting warrantless entry into a home for “community caretaking” in order to conduct a wellness check on an American in his or her home.
 
Despite this clear precedent, the Supreme Court of Montana allowed warrantless entry into William Case’s home under the “community caretaker” exception supported by a wildly lenient standard that merely requires “specific and articulable facts.” (In this instance, Case v. Montana, Case’s ex-girlfriend reported to police that she thought Case might be suicidal.) On Monday evening, PPSA filed a brief asking the U.S. Supreme Court to review Montana’s decision and preserve the Caniglia standard.
 
The creeping expansion of the “community caretaking” exception extends far beyond the law. Common law has long held that officers could enter a home without a warrant only to apprehend a fleeing felon, or if police witnessed a fight or other event that could lead to imminent harm. There is no law from the Founding-era that would have allowed the police to enter a person’s home without a warrant for “community-caretaking.”
 
PPSA told the Supreme Court:
 
“Another powerful reason to grant review is the diluting effect such a low bar for emergency aid searches would cause in other contexts – especially regarding electronic devices … It seems inevitable that lowering the burden for warrantless home invasion would lower the burdens for warrantless invasion of all other repositories or private information.”
 
If the Montana Supreme Court’s ruling holds, this camel’s nose of community caretaking will threaten to admit not just the whole camel but other strange beasts. What is at stake is ultimately not just the long-held “castle and fortress” view of home privacy that traces back to English common law. It is also that an entry into a home will naturally lead to the next logical step – to “check-in” on someone’s well-being by breaking into the contents of their smartphone or other electronic devices.
 
Ninety-eight percent of Americans own a cellphone, and 91 percent own a smartphone. The Supreme Court found that in Riley v. California (2014) a “phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”
 
Millions of Americans have sensitive information in their phones – apps for alcohol, drug, and gambling addictions; apps for prayer requests; apps for pregnancy symptoms; apps for financial issues; and apps for romance. Cellphones can track Americans’ location, and data that reveals where a person worships, banks, organizes political activities, and a network of friends and associates.
 
If the government may enter the home without a warrant based only on a reasonable belief that an emergency exists – far short of probable cause – the government will surely treat electronic sources of information the same way. The expansion of this doctrine will pose an even greater threat to privacy and the ultimate integrity of the Fourth Amendment.
 
We told the Supreme Court: “The insidious branding almost writes itself: ‘Big Brother’ may be ‘watching you,’ but it is for your own good!” For all these reasons, PPSA urges the Court to grant the petition and hear this case.

​Administrative subpoenas are the backstage pass for federal agents seeking to warrantlessly surveil millions of Americans. PPSA filed a FOIA lawsuit on Tuesday against the Department of Justice to bring this practice to light.
 
Thanks to the investigative efforts of Sen. Ron Wyden (D-OR), we have had a glimpse into the murky practice of using what is really an administrative order (given the deference of courts to such “subpoenas”) to collect bulk data. Sen. Wyden revealed that the Homeland Security Investigations unit of the Homeland Security Department fired off administrative subpoenas to acquire millions of financial records from wire-money transfers. In this way, the government got its hands on millions of financial records, complete with personal information, that included money transfers between Arizona, California, New Mexico, Texas, and Mexico.
 
But a multitude of other agencies also issue administrative subpoenas – and there is no telling what they are collecting.
 
“It is likely that in most cases, they are seeking bulk data of millions of innocent Americans to sift through, rather than targeted data against an individual based on probable cause,” said Gene Schaerr, PPSA general counsel. “It is hard to think of a more direct violation of the Fourth Amendment.”
 
PPSA submitted a FOIA request in June 2023, asking the Justice Department and its units for records on whether probable cause standards were applied to administrative subpoenas. How many administrative subpoenas were issued without probable cause? How many were rejected for lacking probable cause? Perhaps most importantly: How many administrative subpoenas were not directed at a particular identifiable investigation or target?
 
In the year-and-a-half since the filing of our FOIA request, the Justice Department and its constituent parts have failed to respond “promptly” – or at all – to PPSA’s query, as the law requires.
 
The FBI did direct PPSA to its Vault website. But the FBI did not state that the Vault contained all responsive records, and did not identify under what categories in this voluminous online chamber of documents the requested records could be found. The FBI and the Executive Office for the United States Attorneys were only a little more responsive than Justice’s Office of Information Policy, the Criminal and Civil divisions of the Justice Department, and the Bureau of Alcohol, Tobacco, Firearms and Explosives – which did not respond in a substantive way at all.
 
“Courts have held that the Freedom of Information Act does not permit agencies to send requesters on a ‘scavenger hunt,’” Schaerr said. “Yet that is what the FBI is doing. Most of the other Justice Department agencies are completely unresponsive. That is why we are filing suit in the U.S. District Court in Washington, D.C., to ask a federal judge to end this lawlessness.”
 
PPSA will report significant developments in our case as they occur.

​The Project for Privacy and Surveillance Accountability recently submitted a series of FOIA requests to law enforcement and intelligence agencies seeking critical information on how the agencies handle data obtained through the use of cell-site simulators, also known as Stingrays or Dirtboxes, which impersonate cell towers and collect sensitive data from wireless devices.  Specifically, PPSA submitted requests to DOJ, CIA, DHS, NSA, and ODNI. 
 
These requests focus on what happens after the government collects this data. As PPSA’s requests state, PPSA “seeks information on how, once the agency obtains information or data from a cell-site simulator, the information obtained is used.” We are particularly interested in learning about the agencies’ policies for data retention, usage, and deletion, especially for data collected from individuals who are not the target of surveillance.
 
PPSA has long been concerned with the invasive nature of these surveillance tools, which capture not only targeted individuals' data but also data from anyone nearby. As we previously stated in a 2021 FOIA request, “this technology gives the government the ability to conduct sweeping dragnets of metadata, location, and even text messages from anyone within a geofenced area.”
 
These FOIA requests specifically demand transparency about what happens after the government collects such data. We seek records regarding policies on data retention, use, and destruction, particularly for information unrelated to surveillance targets. As our requests state, “PPSA wishes to know what policies govern such use and what policies, if any, are in place to protect the civil liberties and privacy of those whose data might happen to get swept up in a cell-site simulator’s data collection activities.”
 
As we previously highlighted, Stingrays represent a significant intrusion into personal privacy, and we are committed to holding the government accountable for its use of such tools. By pursuing these requests, we aim to inform the public about the scope and potential risks of the agencies’ surveillance activities, and to push for greater safeguards over Americans’ private information. PPSA will continue to push towards transparency, and we will keep the public informed of our efforts.

​The Cato Institute is challenging the FBI and Department of Justice in court to demand transparency regarding the government’s warrantless surveillance practices under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The lawsuit, brought under the Freedom of Information Act (FOIA), seeks the release of records on how well the FBI is complying with restrictions placed on the use of this controversial program.
 
Section 702 allows U.S. agencies to monitor communications between foreigners abroad, but it has also been used to capture the communications of Americans, leading to allegations of overreach and privacy violations. Despite bipartisan efforts in Congress to reform or even dismantle Section 702, the public has been kept in the dark about whether any meaningful changes have occurred.
 
Cato has been stonewalled in its efforts to obtain information that could reveal the extent of this surveillance. As Cato Senior Fellow Patrick Eddington pointed out: “When the FBI stonewalls public records requests about a massive surveillance program that gobbles up billions of communications yearly — including yours and mine — it’s violating the law… A law its agents and managers are sworn to uphold.” This case is about more than just documents; it’s about shedding light on potential abuses of power and ensuring that the law protects ordinary citizens from unwarranted government surveillance.
 
The lawsuit raises an essential question about the balance between national security and civil liberties. Without transparency, it's impossible to know whether surveillance programs are being misused or if they adequately protect Americans’ privacy. Cato’s case is a crucial step toward uncovering whether the FBI is following the legal limits placed on Section 702 or if it continues to overreach under the cover of secrecy.
 
If successful, this case could force the government to reveal whether it is truly adhering to the law in its use of FISA's broad surveillance powers. At stake is the privacy of millions of Americans whose communications could be intercepted without their knowledge or consent.
 
This case deserves attention from everyone who values privacy and accountability. PPSA is proud to support Cato’s efforts to push for a future where government overreach is kept in check and individual liberties are safeguarded. We look forward to further developments in this case.

​The U.S. Department of Justice is pioneering ever-more dismissive gestures in its quest to fob off lawful Freedom of Information Act (FOIA) requests seeking to shed light on government surveillance. One PPSA FOIA request, aimed at uncovering details about the DOJ's purchase of Americans’ commercially available data from third-party data brokers, sets a new record for unprofessionalism.
 
Until now, we had become used to the Catch-22 denials in which the government refuses to even conduct a search for responsive records with a Glomar response. This judge-made doctrine allows the withholding of requested information if it is deemed so sensitive that the government can neither confirm nor deny its existence. But when the government issues a Glomar response without first conducting a search, we can only ask: How could they know that if they haven’t even searched for the records?
 
DOJ’s latest response that arrived this week, however, is a personal best. The DOJ’s response shows that it didn’t bother to even read our FOIA request.
 
Our request sought records detailing the DOJ's acquisition of data on U.S. persons and businesses, including the amounts spent, the sources of the data, and the categories of information obtained. This request was clearly articulated and included a list of DOJ components likely to have the relevant records. Despite this clarity, DOJ responded by stating that the request did not sufficiently identify the records.
 
DOJ's refusal to conduct a proper search appears to be based on a misinterpretation, either genuine or strategic, of our request. DOJ claimed an inability to identify the component responsible for handling a case based solely on the “name” of the case or organization. However, PPSA's request did not rely on any such identifiers.
 
Instead, DOJ's response indicates that it may have resorted to a generic form letter to reject our request without actually reviewing its contents. Precedents like Miller v. Casey and Nation Magazine v. U.S. Customs Service establish that an agency must read requests “as drafted” and interpret them in a way that maximizes the likelihood of uncovering relevant documents.
 
DOJ’s blanket dismissal is not just a bureaucratic oversight. It is an affront to the principles of openness and accountability that FOIA is designed to uphold. If the DOJ, the agency responsible for upholding the law, continues to disregard its legal obligations, it sets a dangerous precedent for all government agencies.
 
The good news is that DOJ’s Office of Information Policy has now ordered staff to conduct a proper search in response to PPSA’s appeal, a directive that should have been unnecessary. It remains to be seen whether the DOJ will comply meaningfully or continue to obstruct … perhaps with another cookie-cutter Glomar response.
 
How far might DOJ go to withhold basic information about its purchasing of Americans’ sensitive and personal information? In a Glomar response to one of our FOIA requests in 2023, DOJ came back with 40 redacted pages from a certain Mr. or Mrs. Blank. They gave us nothing but a sea of black on each page. The only unredacted line in the entire set of documents was: “Hope that’s helpful.”
 
This latest response is just another sign that those on the other end of our FOIA requests are treating their responsibilities with flippancy. This is unfortunate because the American public deserves to know the extent to which our government is purchasing and warrantlessly accessing our most private information. Filing these requests and responding to non-responsive responses administratively and in court is laborious and at times frustrating work.
 
But somebody has to do it – and PPSA will continue to hold the government accountable.

​PPSA announced today the filing of an amicus brief asking the U.S. Supreme Court to take up a case in which X Corp., formerly Twitter, objects to surveillance and gag orders that violate the First Amendment and pose a threat to the Fourth and Sixth Amendments as well.
 
When many consumers think of their digital privacy, they think first of what’s on their computers and shared with others by text or email. But the complex, self-regulating network that is the internet is not so simple. Our online searches, texts, images, and emails – including sensitive, personal information about health, mental health, romances, and finances – are backed up on the “cloud,” including data centers like X Corp.’s that distribute storage and computing capacity.
 
Therein lies the greatest vulnerability for government snooping. The growth of data centers is prolific, rising from 2,600 to 5,300 such centers in 2024. And with it, so have government demands for our data.
 
When federal agencies – often without a warrant – seek to access Americans’ personal data, more often than not they go to the companies that store the data in places like these data centers. For years, this power involved large social media and telecom companies. The power of the government to extract data, already robust, increased exponentially with the reauthorization of FISA Section 702 in April, which included what many call the “Make Everyone a Spy Act.” This provision defines an electronic communication service provider as virtually any company that merely has access to equipment, like Wi-Fi and routers, that is used to transmit or store electronic communications.
 
On top of that, the government then slaps the data center or service provider with a Non-Disclosure Order (NDO), a gag order that prevents the company from informing customers that their private information has been reviewed. One such company – X Corp. – has been pressing a constitutional challenge against this practice regarding a government demand for former President Trump’s account data. PPSA has joined in an amicus brief supporting X’s bid for certiorari, asking the Court to consider the constitutional objections to government conscription of companies that host consumers’ data as adjunct spies, while restraining their ability to speak out on this conscription.
 
In the case of X, the government has seized the company’s records on customer communications and then slapped the company with an NDO to force it to shut up about it. The government claims this secrecy is needed to protect the investigation, even though the government itself has already publicized the details of its investigation. Whatever you think of Donald Trump, this is an Orwellian practice.
 
PPSA’s amicus brief informed the Court that the gag order “makes a mockery of the First Amendment’s longstanding precedent governing prior restraints. And it will only become more frequent as third-party cloud storage becomes increasingly common for everything from business records to personal files to communications …”
 
The brief informs the Court: “NDOs can be used to undermine other constitutionally protected rights” beyond the First Amendment. These rights include the short-circuiting of Fourth Amendment rights against warrantless searches and Sixth Amendment rights to a public trial in which a defendant can know the evidence against him.
 
Partial solutions to these short-comings are winding their way through the legislative process. Sen. Mark Warner, Chairman of the Senate Intelligence Committee, introduced legislation to narrow the scope of businesses covered by the new, almost-universal dragooning of businesses large and small as government spies – though House Intelligence Chairman Mike Turner is opposing that reasonable provision. Last year, the House passed the NDO Fairness Act, which requires judicial review and limited disclosures for these restraints on speech and privacy.
 
As partial solutions wend their way through Congress, this case presents a number of well-defined concerns best defined by the Supreme Court.

​PPSA today announced the filing of a lawsuit to compel the FBI to produce records about the possible use of FISA Section 702 authority – enacted by Congress to enable surveillance of foreign targets on foreign soil – for political surveillance of Americans at home.
 
Activists on the left and the right have long suspected the FBI uses surreptitious means to spy on lawful protests and speech. Those suspicions were confirmed when a FISA court decision released in 2022 revealed that government investigators had used Section 702 global database to surveil all 19,000 donors to a single Congressional campaign.
 
Acting on this concern, PPSA submitted a FOIA request to the FBI in February seeking all records discussing the use of Section 702 or other FISA authorities to surveil, collect information related to, or otherwise investigate anyone who attended:
 

• President Trump’s “Save America Rally” on January 6, 2021

 

• Black Lives Matter Protests and other BLM events in Washington, D.C., in 2021

 
The FBI almost immediately responded to PPSA that our FOIA request “is not searchable” in the FBI’s “indices.” The response also informed us that the FBI “administratively closed” our request. The FBI did not dispute that PPSA’s FOIA request reasonably described the requested records. This should have, under the FOIA statute, triggered a search requirement, but the FBI ignored it. The self-serving excuse that limitations to the FBI’s Central Records System overlooks the plentiful databases and search methods at the fingertips of one of the world’s premier investigative organizations.
 
After a fruitless appeal to the Department of Justice’s Office of Information Policy, exhausting any administrative remedy, PPSA is now suing in the U.S. District Court of the District of Columbia to compel the FBI to produce these documents. We’ll keep you informed of any major developments.