​PPSA General Counsel Gene Schaerr told the House Judiciary Committee on Thursday morning that Congress faces four critical opportunities to restore Americans’ privacy as Section 702 of the Foreign Intelligence Surveillance Act (FISA) comes up for reauthorization in April.

Schaerr praised the committee for holding a timely oversight hearing as the nation approaches the 250th anniversary of the Declaration of Independence. “But with every passing year,” he said, “it is harder to square our emerging surveillance state with the ‘consent of the governed’ articulated in the Declaration.”

One driver of the surveillance state is FISA Section 702, originally enacted to target foreign threats on foreign soil, but which has instead become a tool the federal government uses to warrantlessly spy on Americans at home, he told the committee.

Schaerr then outlined four reforms Congress can enact in the coming months:

1. Add a probable-cause warrant requirement for “queries” – or searches – of Americans' communications caught up in Section 702 surveillance.

Under current rules, government personnel can conduct “backdoor searches” of Americans’ emails, messages, and other communications collected under Section 702 without court approval. A warrant requirement would close this loophole.

2. Require warrants when federal agencies, from the FBI to the IRS, purchase Americans’ sensitive digital information from data brokers.

This commercially available data includes Americans’ browsing histories, transaction and purchase records, online searches, and other revealing information about their private beliefs and associations. It is far more intimate than anything gleaned from diaries or public records.

3. Narrow the 2024 “make everyone a spy” provision.

Added in the final hours of the last surveillance debate, this law obligates providers of free Wi-Fi to comply with secret NSA demands for private communications. It allows the government to conscript office-space providers – including those who rent space to media organizations, law firms, and political campaigns – into enabling warrantless surveillance of people using their buildings’ internet networks. Even churches and other houses of worship could be targeted.

4. Strengthen the role of cleared civil-liberties experts (amici) in the FISA Courts.

Schaerr urged Congress to require courts to rely on amici for politically sensitive FISA cases by finally enacting the “Lee-Leahy Amendment” that passed the Senate in 2020 with 77 votes.
“Nearly a decade after the Trump campaign and transition were illegally surveilled, this key reform – which would have prevented many of the abuses that occurred in 2016 – is still not in place,” Schaerr said. He also urged the loosening of restrictions that prevent existing amici from accessing key materials and proceedings, needed for meaningful oversight inside the secret courts.

Schaerr concluded by praising the committee for taking the lead on congressional surveillance reform.

“With the bipartisan focus that has come to define this Committee’s work in this important area, I am confident that you can right this ship,” Schaerr said.

Gene Schaerr’s full written testimony can be read here.

​On Thursday, December 11 at 9 a.m. (ET), Gene Schaerr, PPSA’s General Counsel, will testify before the House Judiciary Committee – examining the growth of the surveillance state and how Congress can rein it in.

​You will hear:
 

• How the government continues to use Section 702 – a legal authority designed by Congress to surveil foreign threats on foreign soil – to conduct “backdoor searches” of Americans on American soil.

 

• How federal agencies routinely purchase Americans’ sensitive personal digital information, giving the government warrantless access to electronic records, web-browsing activities, transaction and purchase records, online searches, and other data that can be more personal and intimate than a diary.

 

• How a new authority obligates providers of office space for media outlets, law firms, and political campaigns to facilitate warrantless surveillance of their tenants. Even houses of worship are vulnerable to being asked to spy on their congregants.

 

• How the secret surveillance court continues to grant some requests to monitor Americans without meaningful review by experts in civil liberties.

 
Other witnesses will include:
 

• Brett Tolman, Former U.S. Attorney, District of Utah; Executive Director, Right on Crime

 

• James Czerniawski, Head of Emerging Technology Policy, Consumer Choice Center

 

• Liza Goitein, Senior Director, Liberty & National Security, Brennan Center for Justice

 
Again, watch it live at 9 a.m. (ET) on Thursday, Dec. 11, or catch the replay at your convenience.

​Those who live by surveillance cry by surveillance.
 
We wonder how many times politicians on both sides of the aisle will have to get slammed by the very government spying practices they’ve supported before this lesson sinks in.
 
Case in point: Rep. Eric Swalwell (D-CA). Last week, he filed a lawsuit against Bill Pulte, President Trump’s director of the Federal Housing Finance Agency, for accessing and leaking private mortgage records in retaliation for political speech.
 
Pulte has issued criminal referrals to the Department of Justice (DOJ) against Swalwell, New York Attorney General Letitia James, Sen. Adam Schiff (D-CA), and Federal Reserve Governor Lisa Cook on the basis of alleged mortgage fraud. A federal judge dismissed the charges against James, while President Trump used the allegation against Cook to fire her from the Federal Reserve Board (she remains in her job while the Supreme Court reviews the case).
 
Rep. Swalwell’s lawsuit makes an important point:
 
“Pulte’s brazen practice of obtaining confidential mortgage records from Fannie Mae and/or Freddie Mac and then using them as a basis for referring individual homeowners to DOJ for prosecution is unprecedented and unlawful.”
 
We cannot think of any prior use of private mortgage applications to harass political opponents (at least one of them, James, is arguably guilty of using lawfare herself to harass Donald Trump).
 
Pulte’s actions appear to be a flagrant violation of the Privacy Act of 1974, which governs how the government can and cannot handle Americans’ private information. The law, as Swalwell notes, “explicitly forbids federal agencies from disclosing – or even transmitting to other agencies – sensitive information about any individual for any purpose not explicitly authorized by law.”
 
Congress passed the Privacy Act to prevent the creation of a federal database that would create comprehensive dossiers on every American, something we’ve warned is now being attempted. The law specifically forbids agencies from freely sharing Americans’ confidential data gathered for one purpose (such as IRS tax collection), for another purpose (an FBI investigation). Agencies must issue written request justifying any such information sharing.
 
Pulte is anything but transparent.
 
“I’m not going to explain our sources and methods, where we get tips from, who are whistleblowers,” Pulte told the media. This mindset is in keeping with the corrupting spread of the best practices of the intelligence-surveillance state playbook. Today, it is the federal housing agency. We shouldn’t be surprised if tomorrow such “sources and methods” thinking trickles down to federal poultry inspections.
 
Meanwhile, we remain dry-eyed over Rep. Swalwell’s plight.
 
As a member of the House Judiciary Committee, Swalwell argued against – and voted against – the Protect Liberty and End Warrantless Surveillance Act. This bill would have reformed Section 702 of the Foreign Intelligence Surveillance Act by requiring a warrant before the government could access U.S. citizens’ data collected through programs enacted to surveil foreign threats on foreign soil.
 
The Protect Liberty Act would have ended the government practice of using a foreign database to conduct “backdoor searches” on Americans… not unlike, say, a regulatory agency pulling a political opponent’s private mortgage application. The principle of mutually assured payback is something to keep in mind when lawmakers again debate the provisions of Section 702 in April.

​Once upon a time, in Google’s 2004 IPO filing, it aspired to “Don’t Be Evil,” imagining itself a company “that does good things for the world.”

Dateline, November 2025: Various outlets have reported that Google’s app store now includes a version of its Mobile Identify app for Customs and Border Protection. This version is tailored to state and local law enforcement officers who are deputized to work with Immigration and Customs Enforcement (ICE) by using facial recognition to scan people using facial recognition algorithms. If a match is found on federal databases, officials at ICE are notified. And those databases (at least the ones we know of) contain records on more than 270 million people.

Odds are you and your loved ones are in those databases.

The fact that the law enforcement officers who use Mobile Identify are deputized to work alongside ICE is beside the point, as is the fact that ICE has its own, presumably more powerful version of the same app, called Mobile Fortify.

Of far greater concern is that any government agency possesses this ability. It’s easily shared across jurisdictions and Google seems to have no qualms about enabling a tool that could be deployed as a weapon to surveil American citizens at will.

After all, Google’s leaders could’ve just said “no.” But they didn’t, and now an insidious new public-private partnership is afoot. Today, it’s Google and ICE and the issue is immigration enforcement, but don’t expect it to stay that way for long. These kinds of surveillance technologies never stay contained, nor do limitations on who they target. Soon it will be Google and the government – federal, state, county, and local – and the reasons for spying on us could be our religion, political party, ethnicity, affiliation, or – well, you name it.
​
Mobile Identify is just one more reason why Congress must debate how federal agencies are accessing our private information without a warrant. This is something to keep in mind when FISA Section 702, a federal surveillance policy, comes up for reauthorization in April.

​When it was recently revealed that Special Counsel Jack Smith used a grand jury subpoena to secretly access the phone records of eight U.S. Senators and one Member of the House, we were outraged.

We quoted Chief Justice John Roberts in Carpenter v. United States (2018) that “this Court has never held that the Government may subpoena third parties for records in which the subject has a reasonable expectation of privacy.”

We’ve also stood fast by the principle that a right is only a right if it has a remedy, which necessarily includes the ability to sue government officials who violate your constitutional rights.

Concerning the spying on Members of Congress, we wrote: “Senators, like everyone else, deserve a reasonable expectation that their phone records are private.”

Why, then, are so many House Republicans and Democrats up in arms about a last-minute provision stuck into the short-term funding bill that President Trump signed on Wednesday night? That provision, now law, allows individual senators to be awarded up to $500,000 in retroactive lawsuits against the government if their data was sought or obtained without them being notified.

Executive branch surveillance of senators is concerning because it directly impacts the independence of the legislative branch, the functioning of democracy, and thus ultimately the rights of us all. But does this have to mean that the rest of us should be treated as chopped liver?

Think about it:
​

• You cannot sue or in any way impede the dozen federal agencies – ranging from the FBI to the IRS and Department of Homeland Security – for purchasing your most sensitive personal digital data and examining it without a warrant.

 

• You cannot sue if the National Security Agency uses the “Make Everyone a Spy” law to ask your gym, office landlord, or church to hand over records of your communications carried by free Wi-Fi systems.

 

• You cannot sue if a federal prosecutor makes a similar intrusion into your phone logs but keeps it secret with a Non-Disclosure Order (NDO).

Only U.S. senators can sue for being improperly surveilled. And the money they can collect now they can stick right into their bank accounts. The Senate in the last Congress refused to join the House in passing the NDO Fairness Act, which would have restricted the government’s currently unlimited ability to issue gag orders to digital and telecom companies to prevent them from telling you that your records have been accessed.

About this last-minute Senate maneuver, Rep. Chip Roy (R-TX) said, “There’s going to be a lot of people, if they look and understand this, are going to see it as self-serving, self-dealing kind of stuff.”

As we approach next year’s reauthorization of FISA Section 702 – a surveillance authority enacted by Congress for foreign surveillance – Congress will have a golden opportunity to debate a number of reforms that can protect the rights of constituents.
​
Remember us?

The Foreign Intelligence Surveillance Court (FISC) and Foreign Intelligence Surveillance Court of Review (FISCR) are anomalies in American law – secret courts. For decades, they issued secret rulings that created novel interpretations of law that the American people were not allowed to know. They remain to this day one-sided courts in which only the government gets to present its case for why it has a valid intelligence reason to spy on people inside the United States.

Little wonder, then, that 99 percent of the government’s requests to spy on “U.S. persons” are granted by FISC. The one provision that allows FISC judges to bring in outside civil liberties experts, or amici, for advice was not used when the court four times permitted the FBI to spy on a presidential campaign and transition. The Department of Justice also failed to inform the court that a rash of applications for surveillance were actually for Members of Congress and staffers who had oversight responsibility for – you guessed it – the Department of Justice.

To bring oversight to this court and to ensure it is not, in fact, a potted plant, Congress in April 2024 passed the Reforming Intelligence and Securing America Act (RISAA). Among RISAA’s provisions was one that allowed select Members of Congress and designated staff to attend and conduct oversight of FISC proceedings.  

Now Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Ranking Member Dick Durbin (D-IL) have fired off a letter accusing the Department of Justice (DOJ) of derailing this process and curbing oversight.

They write that in the waning days of the Biden administration, DOJ “implemented a policy that requires Members of Congress and their staff to agree to a series of arbitrary and inappropriate procedures before being allowed to attend FISC proceedings, which the Trump Administration has maintained.”

Some of DOJ’s policies and procedures include:

• Prohibiting Members of Congress from sharing information with other Members of Congress and members of their staff;

 

• Restricting Members of Congress from requesting information or documentation from participants of FISC proceedings;

 

• Allowing DOJ staff to remove congressional observers, including Members of Congress, from FISC proceedings at any time and at the sole discretion of DOJ;
• Allowing only a limited number of congressional observers to attend FISC proceedings at any one time;

 

• Prohibiting designated staff from attending the same FISC proceeding as their specified Member of Congress; and

 

• Prohibiting notetaking during proceedings, despite congressional staff’s ability to maintain classified notebooks.

These restrictive rules are idiotic. The objections write themselves.

If Members of Congress cannot talk to anyone else about what they learn – including their staff members who have clearance – what is the point of observing the court proceedings?

Why can’t a Member of Congress and his or her cleared staffer attend together?

Why is the Department of Justice allowed to remove Members of Congress? Isn’t removing people from a courtroom up to a judge?

Above all, how can oversight be conducted if the overseers must promise forever after to forget what they heard and never mention it again – to anyone?

This is all part of a familiar pattern: Congress passes a bold reform that reins in an intelligence community practice. Then the intelligence community parses words and creates new standards out of thin air that geld the new attempt at oversight.

The good news is that RISAA and its provision for congressional attendance of FISC hearings passed only because of leverage provided by the April 2024 reauthorization debate about FISA Section 702, an authority that governs surveillance of foreign spies on foreign soil. The next Section 702 reauthorization debate is set to occur next April.

Congress should make it clear that the Department of Justice must pull back these onerous provisions as one of many preconditions for Section 702 reauthorization.
​
The easiest path to reform would be if President Trump – himself a target of illicit surveillance rubber-stamped by FISC – ordered the Department of Justice to roll back these severe limits on congressional oversight.

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

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

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

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

 

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

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

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

 

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

 

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

 

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

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

“Just because you’re paranoid doesn’t mean they aren’t after you,” says Yossarian, Joseph Heller’s terrified bomber pilot in Catch-22. The same could now be said by eight U.S. Senators and one U.S. House Member – all Republicans – who were secretly spied upon by the FBI during the Biden administration.
​
For five years now, the Project for Privacy and Surveillance Accountability has filed Freedom of Information Act (FOIA) requests demanding records from the FBI and other intelligence agencies about the possible surveillance of Members of Congress. We used every legal avenue – from FOIA requests to lawsuits – to compel the FBI, the Department of Justice, the Office of the Director of National Intelligence (ODNI), the National Security Agency, and the Department of State to disclose documents about the possible surveillance of Members of Congress with oversight responsibility over this intelligence community.

In short, we wanted to know if the FBI and other agencies were “overseeing” their ostensible overseers in Congress.

The government’s only response was the flippant use of the “Glomar response,” a court-created doctrine in which an agency can issue a “neither confirm nor deny” answer. In one instance, a response from ODNI came back within four business days, unprecedented speed for the bureaucracy. The Glomar response was originally created to protect a super-secret CIA project to retrieve a sunken Soviet nuclear submarine. Now it is being used to hide domestic spying.

At the time, Gene Schaerr, PPSA general counsel, responded: “The government doesn’t want to even entertain our question. What do they have to hide?”

Now we know at least part of what the government has to hide.

The FBI in 2023 analyzed the phone records of Sen. Lindsey Graham (R-SC), Sen. Bill Hagerty (R-TN), Sen. Josh Hawley (R-MO), Sen. Dan Sullivan (R-AK), Sen. Tommy Tuberville (R-AL), Sen. Ron Johnson (R-WI), Sen. Cynthia Lummis (R-WY), Sen. Marsha Blackburn (R-TN), and Rep. Mike Kelly (R-PA).

Among them we count three sitting members of the Senate Judiciary Committee, charged with oversight of the FBI, as being targeted by Bureau surveillance.

What was the FBI up to? The FBI document states it “conducted preliminary toll analysis on limited toll records,” meaning it secured and analyzed calls made by these Members in relation to their votes on whether to certify the 2020 presidential election results. The FBI’s analyses were based on metadata – who called whom and when. As research from Stanford University has shown, such seemingly innocuous records can yield “surprisingly sensitive personal information” about the likely contents of those calls.

That is one reason why Sen. Chuck Grassley, Chairman of the Senate Judiciary Committee, called this a “weaponization by federal law enforcement under Biden” that was “arguably worse than Watergate.”

We predict this is just the tip of the iceberg. The ease with which the FBI surveilled prominent Members of Congress hints at the underlying reasons for which PPSA’s queries have been batted away so consistently by the intelligence community. We believe that time will reveal that there is more – much more – evidence of the intelligence community accessing the private communications of Congress.

Next year Congress will hold a debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act. It should be clear to all Members that the FBI can’t be trusted. We need reforms across the board, from ending the abuse of Section 702 as a source of warrantless domestic surveillance, to ending government data purchases.

The CLOUD Act of 2018 is a framework for working with U.S. tech companies to share digital data with other governments. This law and basis for international agreements was a reasonable concession to allow these companies to do business around the world. But the agreement has gone off the rails because of the United Kingdom’s astonishing attempt to force Apple to break end-to-end encryption so they can access the data of all Apple users stored in the cloud.

Rather than violate the privacy of its users, Apple has stood by its customers and withdrawn encrypted iCloud storage from the UK altogether.

The House Judiciary’s Subcommittee on Crime and Federal Government Surveillance was already skeptical about that agreement, but appalled when the British government used it to secretly order Apple to provide that unfettered, backdoor access to all the cloud content uploaded by every Apple user on the planet. It was an unprecedented request, and an unexpected one from a fellow democracy.

• In the two years the agreement has been in effect, the UK issued more than 20,000 requests to U.S. service providers. The bulk of those requests included wiretapping surveillance.

 

• In comparison, the United States issued a mere 63 requests to British providers, mostly for stored data.

 

• Compare the UK’s 20,000 requests to the 4,507 wiretap orders of U.S. federal and state law enforcement agencies in criminal cases in two years. The United States has five times the population of the U.K., but only issues about one-fourth the number of such orders.

In April, members of the House Judiciary Committee asked Attorney General Pam Bondi to terminate the U.K. agreement. As extreme as that sounds, PPSA supports that proposal as the best way to persuade Britain to back off an unreasonable position. In the worst-case scenario, no agreement would be better than comprehensive violation of Americans’ privacy.
Undeterred, the subcommittee convened a recent hearing entitled “Foreign Influence On Americans’ Data Through The CLOUD Act.” Greg Nojeim from the Center for Democracy & Technology was an invited witness. If one had to name a single theme to his powerful testimony, it would come down to one word: “dangerous.”

Subcommittee Chairman Andy Biggs used the same word, declaring the secretive British demand of Apple “sets a dangerous precedent and if not stopped now could lead to future orders by other countries.” Ranking Judiciary Committee Member Jamie Raskin struck a similar chord: “Forcing companies to circumvent their own encrypted services in the name of security is the beginning of a dangerous, slippery slope.”

In short, the hearing demonstrated that the CLOUD Act has been abused by a foreign government that does not respect privacy and civil liberties or anything remotely like the Fourth Amendment to our Constitution. It needs serious new guardrails, beginning with new rules to address its failure to protect encryption. Expert witness Susan Landau of Tufts University warned the subcommittee that the U.K. appeared to be undermining encryption as a concept. A U.S.-led coalition of international intelligence agencies, she observed, recently called for maximizing the use of encryption to the point of making it a foundational feature of cybersecurity. Yet Britain conspicuously demurred.

• Rep. Biggs said: “Efforts to weaken, or even breaking, encryption makes us all less secure. The U.S.-U.K. relationship must be built on trust. If the U.K. is trying to undermine this foundation of cybersecurity, it is breaching that trust.” Once pried opened, he cautioned, “It's impossible to limit a back door [around encryption] to just the good guys.”

 

• Rep. Raskin warned that issues with the CLOUD Act itself are emblematic of larger privacy issues. “None of these issues exists in a vacuum. All government surveillance curtails all citizens’ liberties.” To which witness Richard Salgado added, “If there's still a real debate about whether security should yield to government surveillance, it doesn't belong behind closed doors in a foreign country … the debate belongs in public before the United States Congress.”

That debate will likely become intense between now and next spring when Congress takes up the reauthorization of Section 702 of FISA, the Foreign Intelligence Surveillance Act. Judiciary Chairman Jim Jordan indicated as much when he used his opening remarks to tout the “good work” the Committee has ahead of it in preparing to evaluate and reform Section 702.

Later in the hearing, Chairman Jordan returned to the looming importance of the Section 702 debate, asking each of the witnesses in turn a version of the question, “Should the United States government have to get a warrant before they search the 702 database on an American?”

All agreed without hesitation.

“Wow!” declared Rep. Jordan in response. “This is amazing! We all think we should follow the Constitution and require a warrant if you're going to go search Americans’ data.”
​
Rep. Raskin nodded along. And that’s as bipartisan as it gets.

​Last year brought surveillance reform achingly close to passage. The Fourth Amendment Is Not for Sale Act – which would have forced the government to obtain a warrant before purchasing Americans’ personal data from data brokers – passed the U.S. House but died in the U.S. Senate. A warrant requirement for the review of Americans’ personal data fell short in the House in a tie vote.

Now, we know that these were uphill votes not just because of the intense opposition of federal intelligence agencies, but because the Biden White House had overseen an intense lobbying effort to give the illusion of grassroots opposition from state law enforcement.

To create this illusion, the administration reached out to local and federal law enforcement alike with pre-approved talking points from a Washington lobbying firm, letters to sign, and a list of lawmakers to target.

The efforts involved the misuse of High Intensity Drug Trafficking Areas (HIDTAs). These are hybrid federal-state entities intended to provide coordination and ensure the efficient use of federal funds in fighting organized drug crime. The federal side of this partnership is directly overseen by the White House Office of National Drug Control Policy.

A response to a PPSA Freedom of Information Act (FOIA) request reveals that during the prior 118th Congress, these organizations were repurposed for lobbying Congress. Emails from the Chicago HIDTA piggybacked off efforts from a Capitol Hill lobbying firm and orchestrated all the elements of what would appear to a Member of Congress to be a spontaneous grassroots movement by state law enforcement groups and associations in opposition to popular surveillance reform amendments.

This network of federal agencies working behind the scenes to coordinate this messaging, under the purview of the White House, distorted the debate and abused Congressional trust in sincere-sounding letters to Congressional leaders like Rep. Jim Jordan, Chairman of the House Judiciary Committee, and Rep. Jerry Nadler, Ranking Member. Given that HIDTAs are distribution points for significant amounts of much-needed federal funding, it’s questionable how voluntary the sign-on from state law enforcement groups really was.
​
Perhaps Chairman Jordan and Ranking Member Nadler might want to look into how much federal money might have been spent limiting their oversight. At the very least, the current administration should cut off federal funds for lobbying before the surveillance reform debate begins again next year.

​Last week saw two federal court rulings concerning President Trump’s ability to fire members of independent boards.
 
One came from the U.S. Supreme Court, which ruled on Thursday that President Trump has the right to fire members of two independent boards, specifically the National Labor Relations Board and the Merit Systems Protection Board. The day before, however, a federal judge ruled that President Trump unlawfully removed two Democrats from the Privacy and Civil Liberties Oversight Board (PCLOB).
 
The Trump administration will likely conclude that this lower court ruling stands an excellent chance of being overturned appeal. Even if that is so, however, President Trump would help himself and advance his policies if he declined to do so. The president should instead embrace this ruling as an unexpected opportunity to reconsider the decision to fire the two Democrats. Doing so would strengthen the president’s surveillance reform agenda.
 
Here's why: PCLOB was enacted by Congress to act as a watchdog to ensure that federal counterterrorism efforts do not violate the civil liberties of Americans. As a bipartisan body, it plays a unique role in checking the intelligence community’s power. Its members aren’t figureheads, or partisan actors. They are heavyweight experts in surveillance and privacy policies, providing essential oversight.
 
One of the reinstated members, Travis LeBlanc, has been vocal in consistently challenging overreach in federal surveillance of Americans. He has criticized the FBI’s warrantless searches under Section 702 of FISA and pushed for stronger privacy protections. His civil liberties stance broadly supports and advances the critique of the intelligence community and its interference in American political life held by President Trump, Director of National Intelligence Tulsi Gabbard, and FBI Director Kash Patel.
 
These two Democrats were notably at odds with the Biden administration, which never saw an intelligence program or activity it didn’t like. Keeping LeBlanc and the other Democrat, Edward Felten, onboard avoids the risk of replacing them with less reform-minded Democrats. It would empower oversight voices who share the administration’s goal of curbing abuse within the intelligence community.
 
PPSA urges President Trump to take this opportunity to let these members continue their work. Doing so would support, rather than undermine, his expressed commitment to restoring trust and accountability in intelligence oversight.

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

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

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

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

​House Members asked leading civil liberties experts to testify this morning on the “continued pattern of government surveillance of American citizens.” Gene Schaerr, PPSA general counsel, testified before the Subcommittee on Crime and Government Surveillance, setting out the dimensions of the federal government’s spying on Americans. He also spoke optimistically that Congress can rein in these practices. Here’s an excerpt from his written statement:
 
“We have seen under administrations of both parties the expansion of myriad forms of privacy-destroying technologies and practices – elements of an emerging American surveillance state being knitted together before our eyes.
 
“Like the proverbial frog unaware that it is slowly being boiled alive, Americans are being progressively trapped in a system of national surveillance. This is not happening because federal agencies are run by tyrants. The men and women in the intelligence community are passionate about their mission to protect the American people and our homeland. But in their zeal to execute their important mission, they are rapidly creating the elements of a pervasive American surveillance state. And astonishingly fast changes in technology are helping build this surveillance state before our laws can catch up to keep it within the constraints of our Constitution.
 
“At airports, at malls, on the streets, we are identified and tracked by our faces. Cellsite simulators in geofenced areas ping our phones to follow our movements. Our automobiles keep a record of every place we drive. Our digital devices at international terminals are subject to having all their contents downloaded and inspected without a warrant. Moreover, thanks to purchases of Americans’ digital information from data brokers, federal agencies ranging from the FBI to the IRS, Department of Homeland Security, and the Department of Defense, routinely access, without a warrant, digital information far more personal than what can be gathered by hand or found in a diary.  To top it off, we also face the routine collection of Americans’ communications ‘incidentally’ caught up in the global data trawl of programs authorized by Section 702, and in the past few years alone the FBI has conducted hundreds of thousands of warrantless searches of the Section 702 database specifically looking for Americans’ communications. 
 
“The end result is that the government is now able to collect and search through vast amounts of Americans’ communications and other personal data with ineffective statutory limits and limited congressional oversight. The personal data thus obtained reveals much about our health, mental health, and personal relations. Worse, all this data generated from myriad sources can then be woven together by the instant power of artificial intelligence to comprehensively track where we go, who we meet with, what we say or share in private, and what we believe. As a result, federal agencies are capable of generating comprehensive political, religious, romantic, health, and personal dossiers on every American from information gathered without a warrant. 
 
“This is as about as far from the Founders’ vision of the Fourth Amendment as one can imagine. Revulsion at government surveillance runs deep in our DNA as a nation; indeed, it was one of the main factors that led to our revolt against British rule and, later, to our Bill of Rights. Agents of the Crown could break into a warehouse or a home to inspect bills of lading or a secret political document, but they couldn’t access anything close to the wealth of private information contained in our digital lives today.
 
“Month by month, it is harder to square this emerging surveillance state with the ‘consent of the governed’ concept articulated in the Declaration of Independence and embodied in Article I of the Constitution. The Founders believed that American citizens should not be subject to surveillance by their own government without their consent – in the form of a statute duly enacted by their representatives in Congress. They should not be subject to surveillance at the whim of any executive official, none of whom has authority to consent to surveillance on their behalf …
 
“In the face of a surveillance state growing at breakneck speed, this Committee has shown leadership and a sense of urgency that matches the moment. We don’t have to supinely accept the erosion of all privacy. We don’t have to trust that government agents and future administrations will always use these awesome powers solely for national security. These technologies simply offer too much power to trust that future guardians will not be tempted to misuse them, as they have done in the past.
 
“In short, you have shown that you can protect both the constitutional rights of your constituents and also keep them safe from foreign and domestic threats. I urge you to uphold the Constitution by once again advancing – and persuading your fellow Members to adopt – a warrant requirement for both government-purchased data and data collected under Section 702.”
 
You can read Gene Schaerr’s full testimony here, and watch the full hearing here.

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

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

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

 

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

 

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

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

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

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

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

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

​Congratulations FBI Director Kash Patel on your confirmation by the U.S. Senate.
 
In your nomination hearing, you brought a refreshing new tone that was notably lacking in the patronizing and reticent responses of your predecessor. You spoke of the more than 200,000 improper queries of American citizens under FISA Section 702 as “255,000 reasons why the American people don’t trust” the FBI.
 
Your willingness to discuss the FBI’s intrusion into Americans’ privacy prompted Sen. Mike Lee (R-UT) to exclaim, “Music to my ears. You are the very first FBI director or FBI director nominee who when asked about this hasn’t said, ‘Oh, don’t worry about it. We’ll handle it okay. We’ve got good people on the inside. We would never breach the trust of the American people.’ Do you know what? They were lying …”
 
Can you please allow your new tone to set a new direction at the FBI?
 
The FBI has routinely used Section 702 as a catch-all for investigating domestic crimes and snooping into the privacy of 19,000 donors to a congressional campaign, the private data of a U.S. Senator and a U.S. House Member, as well as a state judge and a local political party.
 
Now that you are heading for FBI headquarters at 935 Pennsylvania, N.W., we urge you to:
​

• Reveal the annual numbers of U.S. person queries (along with the numbers of any actual probable cause warrants) under Section 702 and tell us how many were for domestic crimes not related to spying and terrorism.

 

• Disclose the amount of dollars the FBI spends on purchasing the digital data of Americans, the data brokers this data is purchased from, and the investigative justification for these data purchases by category.

 

• Pledge to restrict the broader definition of “electronic communications service provider” to providers of a segment widely believed to be companies that store data in the cloud.

 

• Continue, with Attorney General Pam Bondi, a commitment made by the former attorney general in a letter to Senate leaders that the expanded “electronic communications service provider” authority will only be used to close a technical gap to fill a critical intelligence need.

 

• Refrain from extending this secret-surveillance-on-demand for any kind of business that offers free Wi-Fi to its customers.

 

• Declassify the nature of this “technical” gap? (Everyone already knows it is about cloud computing – so can Congress please be allowed to openly discuss this?)

 

• Support Sen. Mark Warner’s pledge that the narrowing of this authority must be included in legislation.

​
We welcome your fresh perspective and critical outlook at the FBI. Waiting for you in your office will be a few tons of baggage left over from prior directors who played word games with Congress and stretched every tiny gap into a loophole, and every loophole into a canyon.
 
If you can change that tradition, you will be setting up the FBI for great things in the future.

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

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

Other members of the newly-announced board include:

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

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

​As we reported earlier this year, Judge LaShann DeArchy Hall of the U.S. District Court for the Eastern District of New York ruled that when the government searches for the communications of U.S. persons in data collected under FISA Section 702 authority, such searches are subject to the Fourth Amendment. Such searches must either be conducted after the issuance of a warrant, or meet stringent exceptions to the warrant requirement.
 
Here is a declassified version of Judge Hall’s ruling.
 
In a recent piece in Just Security, David Aaron, Noah Chauvin, and Courtney Otto explore the implications of this ruling for the Second Circuit and the FISA Court. They also explore the impact Judge Hall’s ruling is likely to have in Washington, D.C.
 
“The opinion will likely also be viewed as significant in the halls of Congress, which must decide by April 2026 whether and in what form to reauthorize Section 702. During the last round of reauthorization, an amendment requiring a warrant for U.S. person queries failed in the House by a tie vote (A modified version of the amendment was voted down in the Senate by a wider margin). A key theme in the resistance to the warrant requirement, both inside and outside of Congress, was that no court to reach the merits of the issue had ever ruled that warrantless U.S. person queries violated the Fourth Amendment. Now that is no longer the case, members will face more pressure to impose a warrant requirement by statute.”
 
Let us hope that many Members of Congress will look to Judge Hall’s bold declaration in favor of the Constitution to take a bold step of their own – to require warrants before Section 702 data can be used to spy on Americans.

​The Senate confirmation of Tulsi Gabbard as DNI puts the former Congresswoman from Hawaii in the cockpit of the U.S. intelligence community. Director Gabbard will have to perceive and define evolving threats in the most hostile global environment in almost a lifetime. She will also have no lack of challenges in coordinating the mission of 18 federal agencies and refining their conclusions as actionable intelligence for the president.
 
PPSA, along with our civil liberties colleagues, hope that as Director Gabbard plunges into the myriad challenges of her new job, she will also stand true to her heritage as a champion of the U.S. Constitution. As a Congresswoman, Tulsi Gabbard stood fast to the conviction that we can have both national security and respect for the Bill of Rights. We urge Director Gabbard in her new role to demonstrate the viability of this principle. We call on her:
 

• To close the backdoor search loophole by enforcing a warrant requirement whenever the FBI singles out American citizens for a query of their personal data, collected pursuant to Section 702.

 

• To also require warrants when the government inspects Americans’ personal, digital data purchased by federal agencies from third-party data brokers.

 

• To release the full number of queries of Section 702 databases made by the FBI and other agencies to inspect the personal communications of U.S. persons, so we can understand how this authority is being used.

 

• To extend the promise made by the previous administration to restrict the authorities of the electronic communications service providers to a technical fix (widely believed to apply to cloud computing), rather than use this authority in its most expansive form, forcing practically any kind of American business to spy on their customers.

 

• To deepen Director Gabbard’s predecessor’s effort, the Policy Framework for Commercially Available Information, to guide federal intelligence agencies into developing procedures and strong guidelines in the uses of purchased data.

 
In each of these efforts, we hope Director Gabbard will demonstrate that we can protect Americans from threats from abroad while also protecting them from the prospect of an emerging surveillance state.
 
“In the military, I learned that ‘leadership’ means raising your hand and volunteering for the tough, important assignments,” Gabbard said. We are fortunate that Gabbard has volunteered for this particularly tough assignment. We urge her to find ways to extend her legacy as a defender of the American homeland and as a defender of our freedoms at home.

The confirmation hearings of Kash Patel as FBI director and Tulsi Gabbard as Director of National Intelligence should give civil libertarians across the ideological spectrum hope for greater sensitivity about Americans’ privacy by the intelligence community’s new leaders.
 
Patel’s hearing in the Senate Judiciary Committee did start out on a discordant note. Sen. John Cornyn (D-TX) asked Patel about whether probable cause warrants are needed for the Foreign Intelligence Surveillance Act Section 702 “queries” of U.S. persons. Patel described such warrants as impractical. “It’s almost impossible to make that function and serve the national, no-fail mission,” the nominee said.
 
But Patel also acknowledged the Section 702 authority – enacted by Congress to enable the surveillance of foreign targets on foreign soil – has been widely abused. As we’ve reported, the FBI has used Section 702 to spy on 19,000 donors to a congressional campaign, the private data of sitting Members of the U.S. Senate and House, as well as to provide evidence for ordinary domestic cases.
 
“The concern that the American people have with FISA 702 is not about the real-time collection of communications regarding foreign targets,” Sen. Lee (R-UT) told Patel, describing the government’s warrantless accessing of Americans’ communications. “Under current law, they [FBI] routinely access that without getting a warrant … They’re not supposed to use this for lighter, transient reasons. They are supposed to have a perfectly good reason, and yet we’ve found that on hundreds of thousands of occasions, they have accessed the private communications of Americans searching for those individual Americans by name, by number, by email address, whatever it is, without a warrant, or anything tantamount to it. On occasion, they’ve even been used for overtly nefarious reasons. One agent decided to look in on his father because he suspected his father might be having an extramarital affair. On another occasion, an agent looked at people who were thinking about renting an apartment from him.”
Patel added that the FISA court has reported that “255,000” illegal, improper queries of American citizens had occurred. He said “that’s 255,000 reasons why the American people don’t trust it. And that is why we must work together, Congress and me, to restore that trust, and protect that mission.”
 
“Music to my ears,” Sen. Lee said. “You are the very first FBI director or FBI director nominee who when asked about this hasn’t said, ‘oh, don’t worry about it. We’ll handle it okay. We’ve got good people on the inside. We would never breach the trust of the American people.’ Do you know what? They were lying … You will not lie. That is why I wholeheartedly support you.”
 
In the Senate Select Committee on Intelligence, Sen. Ron Wyden (D-OR) put a series of brisk questions to Gabbard and mostly was pleased by her answers. Gabbard affirmed the written responses she had given the committee, holding that when Americans’ communications are surveilled, warrants “generally” should be required – with emergency circumstances. On the expansion of the definition of electronic communications service providers – which obligates virtually all businesses that offer Wi-Fi to their customers to secretly turn over their communications to the NSA – Gabbard deferred. She agreed to continue a Biden Administration Department of Justice policy that restricts government access to the notes and sources of journalists.
 
While these two nominees’ answers are encouraging, we will have to wait and see if their actions follow their words. In particular, Kash Patel’s framing of Section 702 surveillance as always a “no-fail” goal, if it encompasses domestic crime, elevates constant urgency above procedural safeguards and the Fourth Amendment.
 
One thing is clear – both an FBI Director Kash Patel and a Director of National Intelligence Director Tulsi Gabbard would be far more sensitive than their predecessors to the concerns of civil libertarians about Americans’ privacy and open to hearing from outside of the intelligence community echo chamber.

​A letter released earlier this week from dozens of former high-ranking intelligence officials, including former National Security Advisor Robert C. O’Brien and acting Director of National Intelligence (DNI) Richard Grennell, made the case for Senate confirmation of Tulsi Gabbard to be the next DNI. They wrote:
 
“Her service as DNI will begin undoing the gross politicization that has come to characterize intelligence bureaucracies, which has been to the great detriment of the freedom and security of the United States and its citizens.
 
“Lt. Col. Gabbard’s experience more than qualifies her for this important position. A military officer with more than 20 years of honorable service, she undertook multiple combat deployments and risked her life in defense of the United States. In Congress, she served on numerous national security committees and was an outspoken champion for America’s warriors and for our cherished constitutional freedoms. In both these roles, she experienced first-hand how intelligence, when used as intended, provides critical support to America’s military and political leaders.”
 
They concluded that Tulsi Gabbard has “the integrity, and moral courage, to restore objectivity and professionalism to the nation’s intelligence agencies.”

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

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

​Christian Parenti, John Jay College professor of economics, has penned an intriguing, if somewhat mischievous piece in Compact that makes “The Left Case for Kash Patel.”
 
Parenti builds his appeal for liberal support of Patel, President-elect Trump’s nominee to head the FBI, by drawing on the long-time skepticism of the FBI by the left. This tradition harks back to Sen. Frank Church and his eponymous committee that revealed domestic spying by the federal government and the FBI’s scrutiny, sometimes bordering on persecution, of left-wing and liberal activists. Most notoriously, the FBI tried to provoke The Rev. Martin Luther King Jr. into committing suicide, and was involved in the Cook County police raid that is now largely seen as an assassination of radical activist Fred Hampton.
 
“But these days,” Parenti writes, “many leftists in good standing scoff at the very idea of a ‘deep state’ with the intelligence agencies at its heart.”
 
Parenti goes on to recount for his left-leaning readers conservative complaints about the FBI’s interference in the political process, beginning with the FBI’s use of political opposition research smears to persuade the Foreign Intelligence Surveillance Court (FISC) to issue four surveillance orders of Trump campaign aide Carter Page in 2016, and through him a presidential campaign. Parenti writes that the FBI “proceeded to launder accusations derived from” the Steele Report, which it knew was discredited, “through the press and the DC rumor mill and then treated the resulting rumors as if they were real intelligence.”
 
Parenti makes it clear that the FBI also worked for the better part of a year holding 30 meetings with social media companies to “prebunk” the Hunter Biden laptop story, even though the FBI had authenticated the laptop on Hunter Biden’s iCloud storage account.
 
By connecting the FBI’s misconduct against the left and the right, Parenti argues for a few Patel reform proposals that liberals should get behind. Here are two of them:
 
Move the FBI out of Washington: Parenti writes that “Patel suggests most DC-based FBI staff can be sent to existing field offices, and that the top leadership might need to operate by traveling a circuit of regional offices … An FBI located at the center of DC influence-peddling is necessarily different from one that is scattered across America and tasked with fighting interstate fraud and white-collar crime.”
 
Reform the FBI’s interactions with the secret FISA Court: Patel would do this by “introducing some due-process requirements, including written transcripts of its deliberations and a stable of defense attorneys to attack every warrant request.” This is the essence of the Lee-Leahy Amendment, a proposal to inject civil liberties experts to advise the FISA Court whenever a case implicates sensitive rights involving politics, religion, or journalism. That proposal received 77 votes in the Senate in 2020, with strong support from liberal senators.
 
Parenti concludes that Patel’s agenda to radically reform a Bureau that has “a sordid history of targeting trade unions, peace activists, campus radicals, and Black politicians” deserves the support of the left. But he is skeptical that this will happen in today’s polarized Washington.
 
We ask: Why not welcome the chance to bring guardrails to federal surveillance and reforms to end the Bureau’s political interference? Anyone on either side of the aisle concerned with surveillance abuse should hope for – and encourage Patel – to make good on his goals.