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Rather than violate the privacy of its users, Apple has stood by its customers and withdrawn encrypted iCloud storage from the UK altogether.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

​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.

​Batman isn’t the only one who needs to worry about “unmasking.” This is the term of art for when federal officials ask that an American’s personal, international communications be deanonymized. “Upstreaming” is the National Security Agency practice of working with companies like Verizon or AT&T to create backdoors into the internet backbone to use targeted keywords to collect the content of Americans’ communications.
 
The practice of unmasking rose from 198 instances in 2013 to 5,000 in 2020. As this increase occurred, the intent of these searches began to look more and more political.
 
In 2017, National Security Advisor Susan Rice issued unmasking orders for identities of transition team members for Donald Trump’s first administration. More troubling, U.N. Ambassador Samantha Power or someone in her office made hundreds of unmasking requests. Nearly 270 of these requests came days or even hours before Power’s service in government ended.
 
Some of these unmasking orders were not supported by any legitimate national security justification by Section 702. Many were not subjected to “minimization” procedures to ensure that private information was performed in as limited a way as possible.
 
PPSA has long sought to learn how unmasking and upstreaming might be used against Members of Congress with oversight responsibility over the intelligence community. So we filed FOIA requests with DOJ to seek answers, including records on potential spying on 48 current and recent Members of Congress, ranging from former Vice President Kamala Harris to now-Secretary of State Marco Rubio, Rep. Jim Jordan to Sen. Ron Wyden.
 
We’ve yet to receive a fulsome answer to our Freedom of Information Act requests (FOIA) seeking records reflecting policies governing the unmasking of Members of Congress. But the Criminal Division of the Department of Justice has now informed us in writing that “no responsive records subject to the FOIA were located.”
 
“In other words, the Criminal Division claims to have no policies on how it might warrantlessly tap into the identity of Members of Congress in international communications, and potentially the content of their communications,” said Gene Schaerr, general counsel of PPSA. “When agencies spy on the very people who are charged with their oversight, you might think that at least some policies would be in place.
 
“And you might also think – given that spying on Congress necessarily involves the civil rights of us all – that there would be some internal guardrails or training material,” Schaerr said. “But you would be wrong.”
 
PPSA will report any further revelations in our ongoing efforts to dig out more information on how the intelligence community might be spying on Congress.

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

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

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

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

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

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

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

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

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

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

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

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

​From a risk perspective, facial recognition software is a mixed bag of good and bad outcomes. It has helped capture bank robbers, rapists, and murderers. Yet it is disproportionately bad at accurately identifying people of color and women of color in particular, leading police to arrest the wrong people. And above all, it is by definition a broad surveillance tool fundamentally at odds with the concept of individual liberty. Even the Government Accountability Office is worried, issuing two reports to assess risks and make recommendations.
 
In late 2023 GAO wrote:
 
“The use of facial recognition technology for criminal investigations presents unique questions about civil rights and civil liberties. For example, civil liberties advocates have noted that the use of facial recognition at certain events – such as protests – could have a chilling effect on individuals’ exercise of their First Amendment rights.”
 
Americans who care about their Second Amendment rights should be equally worried about this technology. The connection isn’t as obvious as it is with free speech, but the math works. Imagine:
 

1. You attend a rally in support of the Second Amendment.
2. The ATF and state police are there too, in disguise. They secretly work the crowd and pickpocket the wallets of everyone in attendance.
3. They then use the pickpocketed driver’s licenses to identify the attendees.

 
Oh, wait. The ATF and state police can’t pickpocket IDs because that would be a crime. But let’s try a slightly a different formulation:
 

1. You attend a rally in support of the Second Amendment.
2. The ATF and state police use facial recognition technology to identify everyone in attendance.
3. They then cross-reference the list of rally attendees with various gun registries to develop a short list of attendees who own firearms.
4. Worried about being on various lists, you eventually stop going to Second Amendment rallies.
5. If state or federal authorities decide to confiscate civilian weapons, they have a pre-constructed database ready to (ab)use.

 
Two scenarios. Both unconstitutional. Yet one is perfectly legal. The very use of facial recognition software is tantamount to having our wallets and IDs physically stolen. Somehow we have become inured to the difference.
 
“A search engine for faces,” is how Clearview.ai founder Hoan Ton-That cheerily described his company’s software to CNN Business. Clearview’s 50+ billion images, scraped from the Internet without anyone’s permission (do you recall being asked?) has been used by more than 2,000 organizations in 27 countries – including the Marshals Service, FBI, and ATF. Thank God none of those agencies have any interest in guns.
 
Oh, wait.
 
By the way, if you ever visit Clearview’s website, we recommend you decline all cookies.

​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.

​It is always refreshing to thumb through a court opinion that reads like an Elmore Leonard novel. For example, in a recent opinion of the Eleventh Circuit Court of Appeals, one defendant is also known as “a.k.a. Baldhead, a.k.a. Ball Head.” And the opinion contains numerous references to whether “a cup of ice” is code for an ounce of meth, and to extensive evidence presented in court – guns, money, dope, a gold necklace seized from a home – that could provide props from Netflix’s Narcos.
 
Our guess is that the several defendants in this case, whose convictions were mostly upheld by the court, did not earn enough merit badges to become Eagle Scouts. But they are still Americans with constitutional rights. And, for the good of us all, they should get the same protections of the Fourth Amendment as the rest of us.
 
Did they?
 
Here are the facts: The home of one Rolando Williamson in Birmingham, Alabama, was persistently surveilled by pole cameras from October 2018 through August 2019. The cameras warrantlessly recorded the comings and goings of Williamson and his visitors nonstop, including his front and back yards – the area often referred to in Fourth Amendment law as the home’s “curtilage.” 
 
On the basis of this persistent recording of a home, the government performed a sting operation and followed up with warrants to search Williamson’s home. We agreed with three out of six judges on the First Circuit Court in a similar case, Moore v. United States, that a “reasonable expectation of privacy” was violated when the government placed a pole camera in front of a woman’s home for eight months.
 
In this case, the Eleventh Circuit ruled that similarly persistent surveillance did not violate the Fourth Amendment. The court reasoned that, because one of the cameras overlooked the public street in front of Williamson’s home, and the other recorded the exposed and publicly viewable backyard, the cameras “could view only what was visible from the public streets in front of the house and the public alley behind it.”
 
The court rejected the defense’s comparisons to the U.S. Supreme Court’s Carpenter v. United States (2018), which found a Fourth Amendment violation in law enforcement’s seizure of a suspect’s location history from a cellphone tower. The court also asserted that this case did not resemble United States v. Jones (2012), in which the Supreme Court held that attaching a GPS device to a vehicle amounted to a search requiring a warrant.
 
“By contrast, a pole camera does not track movement,” the Eleventh Circuit found. “It does not track location. It is stationary – and therefore does not ‘follow’ a person like a GPS attached to his vehicle.” Moreover, “the Carpenter decision concerned a technology that is meaningfully different than pole cameras. Pole cameras are distinct both in terms of the information they mine and the degree of intrusion necessary to do so.”

We question the court’s conclusion about the narrowness of data mined by a pole camera. A persistent camera does track movement of residents and their visitors in and out of a home. It potentially reveals a target’s political, religious, and romantic interests. Watching the movements for months around the curtilage of a home – which is highly protected in Fourth Amendment law – is in fact very intrusive.
 
These are ripe questions for future cases. As for the Eleventh Circuit, it declared that it is not making a general rule on the constitutionality of pole cameras. State and federal courts remain divided on that question. And it is a question that will not go away. From pole cameras to drones, aerial panoramas from balloons that can loiter for months, and other persistent forms of surveillance, the courts – and likely, the Supreme Court – will need to set a rule on these forms of outside-in surveillance.
 
To see that they do, PPSA will be looking to provide legal support in cases that present the best fact patterns. 

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

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

Other members of the newly-announced board include:

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

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

​“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.

Suppose you have a next-door neighbor you trusted to help you sell some items online, in exchange for a share of the profits. You give him a key for easy access, and all seems to go well. Sometime later, you can’t remember the combination to your safe, so the locksmith opens it, and you discover your cash is gone. You suspect your neighbor and report him. The police raid his home and collect his cellphone along with other evidence. Law enforcement then obtains a warrant to search the phone, and finds it contains incriminating text messages. A conviction is obtained on that basis.
 
This scenario is based on Michigan v Carson. The warrant in question initially appeared to restrict the phone search to data pertaining to larceny and safe-breaking. So far, so good. But subsequent clauses in the warrant contained language that effectively negated any sensible limitation. The additional language was so expansive as to give authorities carte blanche to search every single piece of data the phone could offer up.
 
What began as a reasonable search within the Constitution’s guardrails for particularity morphed into a broad search amounting to a general warrant.
 
For this reason, PPSA filed an amicus brief before the Michigan Supreme Court showing that the contents of a phone are equivalent to physical documents and other items in a home. Both are personal property and therefore protected from exploratory searches by the Fourth Amendment, which requires that the “things to be seized” be described in very specific terms. This requirement is in fact the heart of the Fourth Amendment – the prohibition of unencumbered search and seizure regularly visited on colonial citizens by British authorities.
 
Searching all data on a modern smartphone is the 21st-century equivalent of ransacking homes and personal property without restriction, only worse.
 
The language in the Carson warrant is something that should give every American just as much pause. The police, it said, could “seize and search” all data on the phone and SIM card, and “all records or documents which were created, modified, or stored in electronic or magnetic form and any data, image, or information that is capable of being read or interpreted by a cellular phone or a computer.”
 
The warrant also contradicted itself by further authorizing the seizure of other physical items, rendering it unconstrained. In the colonial era, this amounted to a writ of assistance, another insidious form of search and seizure that, along with general warrants, were top of mind when the Fourth Amendment was crafted.
 
Whether electronic information or physical belongings, personal “effects” are subject to the same privacy principles. One could painstakingly reconstruct a target’s entire private life using the contents of their phone. It’s arguably a far more intrusive violation than rummaging through the documents in a dwelling.
 
Just think about the contents of your own smartphone for a moment and how you would feel if it was all exposed. It is for this reason that the U.S. Supreme Court held that cellphones contain “the privacies of life.”
 
When it comes to any warrant, its degree of particularity can vary greatly depending on the specifics of the case. But the intent of the Fourth Amendment is that every warrant must be limited in some sensible way.
 
The warrant being challenged in Michigan v Carson contained no limits. Its scope was unbounded and that is why we demonstrated to the Michigan Supreme Court that this search was unconstitutional.

​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.

​A jury in London’s Old Bailey criminal court heard prosecutors last week make a case against a Bulgarian man who had stored enough spy equipment in rented rooms in England to fill the Washington, D.C., Spy Museum. The rooms also contained two devices that should be of interest to any American interested in protecting privacy.
 
Among the thousands of paper and digital exhibits shown to the jury were pendant necklaces, soda bottles, water bottles, and a cap with cameras inside, as well as a device to clone car keys. These surveillance tech devices were allegedly held by 46-year-old Orlin Roussev in a guesthouse at a resort on the east coast of England.
 
Roussev is charged with being part of a Russian plot to employ two devices commonly used by the FBI and state and local law enforcement in domestic cases. Among the items prosecutors say were found were two international mobile subscriber identity, or IMSI, devices worth £160,000. These devices, popularly known as “stingrays” are, in essence, fake cell towers that can pull data out of a nearby cellphone and use it to track its owner’s location. Roussev and several others are accused by British prosecutors of planning to go to Stuttgart, Germany, where Ukrainian soldiers are being trained to operate Patriot missile-defense batteries and to use stingrays to link to their personal phones.
 
The British government says these devices were to then be used to follow the Ukrainian soldiers back to Ukraine, locate them in the battlefield with their Patriot missiles, and target them for annihilation.
 
In a domestic context, stingrays can vacuum up the data and locations of a large number of civilian cellphones in a geofenced area. PPSA has learned that local governments signed an agreement with the FBI that severely restricts what local police and prosecutors can reveal about the use of stingrays in a trial. The agreement’s boilerplate stipulates that if the agency “learns that a District Attorney, prosecutor, or a court” is considering releasing such information, the customer agency must “immediately notify the FBI in order to allow sufficient time for the FBI to intervene …”
 
Once the FBI gains warrantless access to your location and movements, it won’t act like the Russians do and fire an Oreshnik missile at you. But it can follow you everywhere you go, make a case against you in court, and no jury will ever know how this evidence was obtained.
 
Perhaps spies accused of acting for Russia might receive more respect for due process in London than an American targeted by a stingray in your hometown.

​As much as we oppose warrantless surveillance by the FBI, we acknowledge there is much to fear from foreign threats as well.
 
Outgoing FBI Director Christopher Wray’s interview with Scott Pelley on CBS’s 60 Minutes covered a lot of hot political territory, including Wray’s contentious relationship with President-elect Donald Trump. Regardless of your political leanings, however, you should be alarmed by what Director Wray said about China’s use of surveillance and malware to threaten the people of the United States.
 
Pelley reported that CBS has confirmed that China has been listening to the conversations of the two recent presidential candidates, President-elect Trump and Vice President Kamala Harris. Without naming names, Wray said that the FBI believes that the People’s Republic of China has “collected their content, the actual communications of those people.”
 
Wray doubled down on prior statements that China has stolen trillions of dollars’ worth of intellectual property from the United States over the years. China, he said, “has stolen more of American’s personal and corporate data than that of every nation, big or small.”
 
Wray’s words about Chinese malware were the most chilling. He said the greatest danger is the “Chinese government’s pre-positioning [malware] on American civilian critical infrastructure. To lie in wait on those networks to be in a position to wreak havoc and can inflict real-world harm at a time and place of their choosing.”
 
What areas are China targeting? Wray said:
 
“Things like water treatment plants. We’re talking about transportation systems. We’re talking about targeting of our energy sector, the electric grid, natural gas pipelines. And recently we’ve seen targeting of our telecommunications systems.”
 
The latter appeared to be a reference to reports in October that China gained access to AT&T, Lumen, and Verizon systems that the FBI uses for domestic wiretapping investigations. So China appears to be using the FBI itself for outsourcing its spying on Americans.
 
What would an all-out Chinese malware attack on the United States look like? It would look like the Middle Ages, at least for a while. No air travel. No water at the tap. No electricity, which would shut down gas pumps, which would eventually stop vehicular transportation. After the food trucks stop rolling, the squirrels in your backyard might start to look appealing.
 
There is a growing sense among foreign policy experts that a hybrid-war between the United States and China could occur this year, or within the next few years. It is for this reason that PPSA – which has never donned a tin foil hat – soberly advises you to go online or to a big box retail store and purchase several months’ worth of long-term emergency food supplies. You might also want to store water in clean, BPA-free plastic containers, refreshing them every six months. With any luck, these items will just gather dust in your attic, but they will be providing insurance every minute of the day.

​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.

A solemn promise was made on the floor of the U.S. Senate – and by the Congress to the American people – that has been broken. As a result, most businesses and organizations in the United States that offer free Wi-Fi service now have a legal obligation to spy on their tenants and customers for the National Security Agency and keep that spying secret from them forever.
 
In April the U.S. Senate reauthorized FISA Section 702, an authority that allows federal agencies to spy on foreign targets on foreign soil. Facing an eleventh-hour vote, the Senate took Senate Intelligence Committee Chairman Mark Warner (D-VA) at his word that a flaw in the bill would soon be corrected. Accepting that promise, the Senate reauthorized Section 702.
 
That flaw concerns a provision added to the reauthorization that allows the NSA to force businesses that offer internet communications – from the landlords of office complexes that house journalists and political campaigns, to fitness centers, to houses of worship – to make the communications of their customers secretly available. Janitors and cleaning services with access to equipment and thumb-drives in their pockets can now be legally enlisted to spy for the NSA. All this can be done without bothering with niceties like the U.S. Constitution’s Fourth Amendment and its warrant requirement.
 
Sen. Warner acknowledged that this language defining an “electronic communications service provider” was overbroad and promised a fix to narrow it. Though the target category is classified, that fix is widely believed to be narrowing the provision to providers of cloud communications.
 
To be fair to Sen. Warner, it was a few House Republicans who rejected adding the fix to the Intelligence Authorization Act. And it was some Republicans who fought to reject any narrowing of this vast expansion of the American surveillance state, dubbed by many to be the “Make Everyone a Spy” provision. We still remain dismayed and disappointed that the Chairman of the Senate Intelligence Committee could make such a promise and not see to it that it is kept.
 
But Congress can still redeem itself. Surely Members will not want to disappoint constituents as word spreads about the extent and magnitude of this new, limitless domestic surveillance program. Surely they will also want to live up to a solemn promise made to colleagues. This fix can be enacted next year.
 
In the meantime, PPSA will be working with our surveillance reform allies, left and right, to narrow the “Make Everyone a Spy” provision.
 
If Congress chooses not to keep its word, however, the American people will surely grow alarmed and upset over this expansive surveillance. Keep in mind that the House came within one tie-breaking vote of adding a warrant requirement in the reauthorization of Section 702 this year. The Make Everyone a Spy law will now be Exhibit A in making our case for warrants and against the surveillance state.
​

​In a previous blog, we reported on the use of “Suspicious Activity Reports” mandated by the Bank Secrecy Act to spy on politically disfavored groups.
 
We also reported that the government uses these reports to force banks to close the accounts of groups ranging from a trade association to pawn shops, firearms dealers, and a former First Lady. Debanking is an easy way to silence or intimidate people and organizations.
 
Now, thanks to a recent report from the House Judiciary Committee and its Select Subcommittee on the Weaponization of the Federal Government, it is clear that this misuse of this law is even more expansive and worse than we suspected.
 
Congress enacted the Bank Secrecy Act (BSA) to require banks to report to the government suspicious transactions by customers that might indicate that they are linked to terrorism, human trafficking, or drug dealing. The House report reveals that the FBI “has turned this framework on its head” by issuing “requests” – authorized by no law – to demand banks spy on targeted people or organizations. In 48,000 pages of documents, House investigators could confirm only one financial institution requested legal process from the FBI for the information it was seeking. “All too often,” House investigators wrote, “the FBI appeared to receive no pushback.” They concluded:
 
“In sum, the FBI has turned this framework on its head and contravened the Fourth Amendment’s requirement of particularity and probable cause.”
 
While the FBI had an obligation to seek out those who beat police officers and smashed the doors and windows of the Capitol on Jan. 6, it coordinated with the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN) to encourage financial institutions across the country to scour their data and file Suspicious Activity Reports on Americans without any clear criminal nexus. As we reported before, Americans were targeted for going to certain stores, like Dick’s Sporting Goods or a Bass Pro Shop.
 
A Bank Secrecy Act Advisory Group, meant to serve as an advisory body to the Treasury Department, has become a secret service unto itself. House investigators report that this advisory group “is also a tool for federal law enforcement and financial institutions to monitor the private, financial data of American citizens.”
 
The scale of warrantless surveillance under this authority is immense. In 2023, some 25,000 federal, state, and local officials had warrantless access to data acquired under this law. In 2023, government officials ran more than 3.3 million searches of a FinCEN Query program of these reports. FinCEN reports that “472 federal, state, and local law enforcement, regulatory, and national security agencies have access to BSA reports …”
 
And this is just one federal program monitoring Americans financial lives, which is a way of monitoring our personal, romantic, political, and religious lives as well. Reforming the Bank Secrecy Act should be at the top of the agenda for the incoming Trump Administration and the 119th Congress.

​Allysia Finley in The Wall Street Journal covers the widespread and growing practice of federal agencies’ using the Bank Secrecy Act to surveil and punish politically disfavored groups through “debanking.”
 
Banks face penalties that can go into the billions of dollars if they fail to close an account for a customer who is the target of numerous “Suspicious Activity Reports” (SARs), which flag them as “high risk.” Last year, banks filed 4.6 million SARS, leading to an unknown number of customers losing their accounts.  
 
Victims include former First Lady Melania Trump, and groups targeted by some in government such as firearms dealers, payday lenders, and pawn shops. Now the provision has blocked the Blockchain Association, a trade group for the cryptocurrency industry. Barney Frank, a former Chair of the House Financial Services Committee, says that the FDIC seizes banks “to send a message to get people away from crypto.”
 
Finley writes:
 
“The overbreadth in bank reporting is a plus for the government, since it gives the Federal Bureau of Investigation a trove of reports to scour without a warrant. The more info it has on more bank customers, the better, even if most haven’t committed a crime. Regulators prohibit banks from notifying customers if they have filed a SAR.”
 
Unraveling the use of the Bank Secrecy Act to compile voluminous records of Americans’ private financial activities should be high on the list for reform by the incoming Trump administration and the next Congress.

​Paul Atkins, Donald Trump’s nominee to head the Securities Exchange Commission, will have a chance to roll back big expansions of the federal surveillance state within his first few days on the job.
 
Atkins can do this because outgoing SEC Chair Gary Gensler has pioneered new territory by using his agency to expand the financial surveillance of the American people without clear statutory authorization. The SEC under Gensler has made use of a program called the Consolidated Audit Trail, a database that collects not just investors’ trades, but also the personally identifiable information of 100 million U.S investors in a database run by an agency with a record of vulnerability to hackers.
 
This surveillance is based not on a law, but on SEC’s Rule 613, which was originally meant to respond to the 2010 “flash crash.” Never one to let a crisis go to waste, Gensler expanded what was meant to be a fix to a technical glitch and instead turned it into a national surveillance program. SEC’s Rule 613 now requires self-regulatory organizations, like private stock exchanges, to collect details about private trades on a U.S. exchange. Consequently, some 3,000 federal employees have access to the confidential data of America’s private investors.
 
The SEC under Gensler has also fined 26 financial firms almost $400 million for failing to track the private communications of their employees on their personal phones. Most financial firms already enforce policies that prohibit their employees from using their personal devices and messaging apps like WhatsApp for business. But until now, it was not the business of an employer to force employees to hand over their personal phones for inspection.
 
Perhaps Paul Adkins, as the new SEC Chair, will work to quickly undo Gensler’s handiwork and return a modicum of financial privacy to the American people.
 
President-elect Trump’s nominee as Treasury Secretary, Scott Bessent, has a similar chance to undo bureaucratically conjured surveillance. He can do this by ending the department’s Financial Crimes Enforcement Network’s “beneficial ownership” form, which threatens Americans with prison time and a $10,000 fine if they fail to file this form listing all the owners of their small businesses.
 
There is a lot of warrantless surveillance conducted by the federal government that can only be changed by law, from the purchasing of Americans’ personal data by the IRS, FBI, and many other federal agencies, to the expansion of the “Make Everyone a Spy” law to enable the NSA to force millions of small businesses that provide Wi-Fi to customers to turn over the communications of their customers. Those are heavy lifts that will take considerable effort by Congressional reformers to change.
 
But the SEC and FinCen items are low-hanging fruit. Scott Bessent and Paul Adkins should pick them as soon as possible.

​The first reactions to a report issued last week by Department of Justice Inspector General Michael Horowitz centered on the man-bites-dog irony of the Justice Department having spied on the nominee to head the FBI, Kash Patel. The underlying story is far bigger and as significant as any other of recent surveillance scandals – Horowitz revealed that the government’s lawyers failed to inform a judge in the secret FISA Court that their applications for surveillance were to spy on Members of Congress and senior congressional aides on committees that oversee the Department of Justice.
 
It’s as if you asked a friend if you could borrow her car to go to the store but forget to tell her that the store is in Mexico. Justice Department prosecutors showed just about that level of mendacity in 2017 when they sought communications of Members of Congress, including then-House Intelligence Committee Chairman, Rep. Adam Schiff (D-CA), and Rep. Erik Swalwell (D-CA), 20 Democratic staffers, as well as Patel and 19 other Republican staffers.
 
The intent of the request was to reveal if there was cause-and-effect between their emails and journalists at The Washington Post, The New York Times, and CNN, who wrote stories in those outlets based on a classified leak of “Top Secret/Sensitive Compartmentalized” documents. As it turned out, no crimes or leaks were discovered. Horowitz reveals that DOJ obtained 40 Non-Disclosure Orders forcing communications providers to secretly provide the records of Members of Congress and staffers, with some of the search orders extended up to four years – even though the request involved leaks around the same time frame in 2017.
 
Horowitz concludes:
 

• “The Department’s decision to compel the production of non-content communications records of Members of Congress and congressional staffers implicated the constitutional rights and authorities of a co-equal branch of government ...

 

• The Justice Department’s actions “risks chilling Congress’s ability to conduct oversight of the executive branch because it exposes congressional officials to having their records reviewed by the Department solely for conducting Congress’s constitutionally authorized oversight duties and creating, at a minimum, the appearance of inappropriate interference by the executive branch in legitimate oversight activity by the legislative branch.”

 
The Justice Department’s policy did not, at that time, have an internal policy governing the compelled acquisition of congressional communication records from third-parties. Perhaps feeling the heat from outraged Members of Congress, Justice established the requirement in future applications to inform the Justice Department’s Public Integrity Section and a U.S. attorney before surveilling Members of Congress and their staffers in this way. Horowitz found that process insufficient, calling on a new policy that requires the informing of the Attorney General or the Deputy Attorney General.
 
Concerning the surveillance of journalists, Horowitz found that the Justice Department did not comply with all of its internal provisions. For example, a committee dedicated to applications for media surveillance was not convened, as required by Justice Department policy. That policy also required informing the Director of National Intelligence, which the Justice Department did not do in at least one instance.
 
PPSA believes the intelligence agencies are surveilling Congress in many other ways. That is why we have sued not just the Department of Justice, but also the NSA, the FBI, the CIA, and the State Department to learn if these agencies are surveilling current and former Members of Congress with oversight responsibilities over those very agencies.
 
If the intelligence community is surveilling Members of Congress on the Intelligence and Judiciary Committees, then it is a case of the overseen overseeing the overseers. This danger is made much worse by House policies, where relatively few House staffers have security clearances that would allow them to help their bosses keep the intelligence agencies in check.
 
We hope at a minimum that the House will widen staffer clearances, as the Senate has done, to assist in greater oversight of these agencies. We especially hope that incoming President Trump will have his people dig into the practice of surveilling Members of Congress and bring it to light.

Breitbart recently broke a story that a few recalcitrant House Members are holding up a promised fix to what many referred to as the “Make Everyone a Spy” law.
 
The fix regards an amendment to the reauthorization of FISA Section 702, passed in April, in which pro-surveillance advocates added a requirement that U.S. business owners who offer customers the use of their Wi-Fi and routing equipment be covered as “electronic communication service providers” under the law. This means that any business – your neighborhood fitness center, an office complex that houses journalists, political campaigns, or even a church or other house of worship, as well as a host of other establishments – would face the same requirement as large telecoms to turn over the communications of their customers, no warrant required.
 
This was not meant to happen. As the Senate voted in April to reauthorize FISA Section 702, bipartisan furor erupted over this provision, including leading conservatives in both chambers. Sen. Mark Warner (D-VA), Chairman of the Senate Intelligence Committee, promised his colleagues that the amendment that included this expansive authority would be narrowed to include only one category of business. That category is classified but is widely believed to be data centers that provide cloud computing and storage.
 
With this promise in hand, the Senate voted down an amendment to remove the flawed provision, and immediately passed the reauthorization of Section 702 – all in the belief that the expansive new spy power would soon be curbed.
 
Sen. Warner was true to his word, inserting language into the Senate intelligence bill that narrows the scope of the new measure. Now, in a baffling turn of events, it is the House that is refusing to include the fix in its version of the intelligence bill.
 
Why are some House Members insisting on keeping an authority that allows spying on churchgoers, shoppers, and office workers? Bob Goodlatte, the former chairman of the House Judiciary Committee and PPSA senior policy advisor, told Breitbart News: 
 
“This measure passed because of assurances that this insanely broad authority would be narrowed. The promise of a fix was made and accepted in good faith, but that promise is being trashed by advocates for greater surveillance of our citizens. Unless Congress reverses course, Americans’ data that runs through the Wi-Fi and servers of millions of small businesses, ranging from fitness centers to department stores, small office complexes, as well as churches and other houses of worship, will be fair game for warrantless review. This would truly transform our country into a thorough surveillance state. I can’t imagine the next Congress and new Administration would welcome that.”
 
Surely, giving the deep state free rein to spy on Americans is not in keeping with the philosophy of the incoming Trump administration, the new Republican majority in Congress, or most Democrats.
 
Contact your House Member and say:
 
“Please don’t let this legislative year end without narrowing the Electronic Communication Service Provider standard. Congress must keep its promise to fix the Make Everyone a Spy Law.”