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

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

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

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

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

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

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

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

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

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

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

The Fourth Circuit underscored the importance of its opinion:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

We’ve long suspected that political coordination is taking place between supposedly non-political Intelligence Community officials and their champions on Capitol Hill in opposing surveillance reform.

It is one thing to suspect such coordination. It is another to see a request for it in black and white in an official document.

PPSA received a batch of partially redacted documents in response to our June 2024 Freedom of Information Act (FOIA) request asking for communications between Members of Congress and the Office of the Director of National Intelligence (ODNI).

The Deputy General Counsel for Rep. Jim Himes (D-CT), the Ranking Member of the House Permanent Select Committee on Intelligence, emailed an ODNI Legislative Liaison Officer in 2024 about The Fourth Amendment Is Not for Sale Act. The bill would restrict federal agencies from buying Americans’ private digital records from data brokers to obtain records they would otherwise need a warrant to access.

Rep. Himes’s lawyer wrote:

“Our immediate need is two to three simple unclass sentences (that we can attribute to ODNI/DNI) expressing how harmful this bill, if adopted, would be to IC activities.”

Soliciting an agency statement framed around how “harmful” the bill would be warrants scrutiny. That request raises a serious question: How much of the opposition presented to lawmakers as an intelligence assessment was solicited and provided to help defeat the legislation?

This crosses the line for both Rep. Himes and for the agency. The request is for political spin from the officially neutral bureaucracy to be used politically to kill a proposition in a legislative debate on the House floor.  

Despite the opposition, The Fourth Amendment Is Not For Sale Act handily passed the House of Representatives in April 2024. A few days later, the Senate rejected an amendment to attach the measure to a surveillance bill. This email gives surveillance reformers a concrete reason to scrutinize how intelligence agency officials seek to influence debates over any limits on their agencies.

The takeaway for surveillance reformers and our champions on the Hill is that the full force of the intelligence community is backing those who – like the anti-reform senators who made sure that The Fourth Amendment Is Not for Sale Act died in 2024 – are determined to stop any efforts at placing guardrails on the widespread surveillance of the American people.

Flock Safety cameras and other automated license-plate reader (ALPR) systems have become a national flashpoint in debates over surveillance, policing, and privacy. Even data centers poll better than Flock cameras.
 
Now a former police chief is proposing a detailed framework intended to preserve the investigative uses of Flock and other ALPR systems while imposing new rules governing how police departments operate them.
 
Tom Weitzel, who served as police chief in Riverside, Illinois, has released a position paper on automated license plate reader systems, including the cameras made by Flock Safety. Weitzel, a 37-year law-enforcement veteran, writes that he has seen technology improve policing – and seen its misuse damage public trust.
 
In a letter published by Patch, Weitzel explains what prompted his proposal:
 
“I keep watching the debate and feel stuck between two bad options: leave these systems running with no real oversight or rip them out altogether. I don’t accept either option. I’ve seen ALPR data recover stolen vehicles, locate missing people, and crack violent crime cases that otherwise would have gone cold. Walking away from that capability doesn’t make anyone safer.
 
“At the same time, I won’t defend a system that can’t demonstrate it’s being used honestly.”
 
Weitzel proposes that communities adopt:
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• An independent civilian oversight board with subpoena power

 

• Mandatory written justification and case numbers for every search

 

• Immutable audit logs

 

• A 30-day retention limit for data that does not produce a “hit” on an investigative “hot list.”

 

• A public discipline matrix with zero tolerance for personal misuse.

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We note that Weitzel’s suggested 30-day retention period for “non-hit” data – images of vehicles not related to any law-enforcement hot list – exceeds the 7-day retention period now recommended by Flock CEO Garrett Langley. We would also recommend including an explicit prohibition against tracking individuals solely on the basis of their religious, political, or journalistic activity protected by the First Amendment.
 
His paper also proposes transparency measures, including a dashboard that reports aggregate searches, criminal-activity hits, usage audits, and disciplinary actions against officers. He proposes a public portal called “Explain My Stop,” and the selection of community members by lottery to participate in audits.
 
Weitzel would also institute an annual “State of Surveillance” town hall and independent academic reviews. Other elements include a plain-language explanation of ALPR policies, public accounts of cases solved with ALPR assistance, optional alerts for residents whose plates are searched repeatedly, and independent compliance certification for programs.
 
Weitzel’s framework provides a detailed set of ideas for lawmakers in Congress and state legislatures, police departments, and communities to consider as they debate whether – and under what conditions – to continue using ALPR systems

​Did you see The Wall Street Journal editorial Monday morning entitled “Playing National Security Roulette”? The editors argue that anything less than a clean reauthorization of the FISA Section 702 surveillance authority will “put the lives of Americans at risk.”
 
The Journal editors acknowledge that this authority, enacted by Congress to surveil foreign threats abroad, was misused by FBI agents who ran searches on political protesters, political donors, and Members of Congress. “But the intelligence community has since instituted safeguards on how searches must be authorized,” the editors tell us.
 
Thus, according to The Journal, adding any amendments to Section 702 would be a reckless gamble with national security – and reforms are not needed anyway, because the Reforming Intelligence and Securing America Act (RISAA) fixed all the problematic parts of Section 702.
 
Wrong on both counts.
 
Reforms Would Not Compromise National Security
 
Reformers want to amend the law to make the program consistent with the Fourth Amendment by requiring probable cause warrants before inspecting Americans’ communications.
 
But the warrant requirement being proposed for surveillance of Americans contains very clear exceptions for “exigent circumstances,” such as terrorist threats, as well as exceptions for every single other type of search the administration has claimed is helpful in protecting national security, including defenses against cyberattacks. Not only would these reform proposals allow the FBI to proceed without obtaining a warrant in an emergency, but the Bureau would also have great latitude as to what constitutes an emergency.
 
In short, warrants would be required in cases where the government is conducting a fishing expedition with no nexus to national security – such as an agent searching for the communications of his Tinder date, or searching for the communications of thousands of donors to a congressional campaign – but would not be required in exigent cases with national security implications. 
 
The FBI Continues to Violate the Law
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A FISA Court opinion in March 2025 revealed that the FBI had been systematically violating statutory requirements. In August 2024, DOJ overseers learned that the FBI was operating a “filtering” tool that allowed it to query Section 702 data under the radar. These U.S. person “searches” or queries were not counted, tracked, or audited, nor were they approved by an attorney or supervisor, as required by law.
 
Thus, the actual number of U.S. person queries for 2024 remains unknown and outside of any audits.
 
A new FISA Court opinion found that the systemic violations continue. According to The New York Times and The Washington Post, the FISA Court issued a classified opinion that reportedly reveals that even though DOJ shut down the filtering tool the FBI used in 2024, the FBI has been using another, similar filtering tool to conduct queries without following the requirements of RISAA.
 
Thus, the systemic violations of RISAA are not fixed. They are ongoing.
 
In Summary:
 
The warrant requirement proposals contain sufficient exceptions to counter potential terrorists, cybersecurity attacks, and other threats to the American people. And contrary to The Journal’s assertion that the RISAA “reforms appear to be working,” they are clearly not.
 
One final note – while the reauthorization of the Section 702 statute has an April 20 deadline, FISA Court surveillance orders are in effect through next spring. The House has plenty of time to debate these reform measures. There is no need for the kind of panic The Journal – obviously influenced by intelligence community spin – is fomenting.

​Yes, you – and us, and everyone else. We may all soon be tracked in the FBI’s proposed database for domestic terrorism. As Ken Klippenstein reports, buried inside the administration’s 2027 budget “is a new FBI-led center dedicated to ‘proactively’ hunting Americans the government classifies as so-called domestic terrorists.”

It’ll be a busy place, by the looks of it, operating as a joint mission center where 10 federal agencies watch out for any hint of the following beliefs:

·      anti-Americanism
·      anti-capitalism
·      anti-Christianity
·      support for the overthrow of the U.S. government
·      extremism on migration
·      extremism on race
·      extremism on gender
·      hostility towards those who hold traditional American views on family
·      hostility towards those who hold traditional American views on religion
·      hostility towards those who hold traditional views on morality

With the exception of overthrowing the government, this is a highly subjective list, capable of being interpreted (or added to) as any current or future administration of any stripe sees fit. It could include any atheist or agnostic, any supporter of Bernie Sanders, anyone who has leftward views on gender and the family. These standards, of course, could be inverted by the next administration to make suspects out of people who are critical of progressive policies, restrictive gun laws, or big government.

Today, we target atheists. Tomorrow, the FBI could once again target “radical traditional Catholics.”

The free speech implications alone are beyond chilling, but as a privacy matter, it’s draconian. It blurs the distinction between George Orwell’s “thoughtcrime” and actual terrorism. And to work, it must rely on artificial intelligence crunching vast amounts of social media data in ways that reduce the Fourth Amendment to an afterthought.

No less concerning, when this database is paired with the personal data these same federal agencies obtain by purchasing Americans’ digital records from third-party data brokers, you can see all the elements of a total surveillance state falling into place.
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It is hard to imagine that such broad categories can yield meaningful intelligence about real terrorists. But it may be just enough for the government to build a dossier on you.

​“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

That was the question Sen. Ron Wyden (D-OR) put to then-Director of National Intelligence James Clapper in an open hearing in 2013.

“No sir,” Director Clapper responded, then qualified his statement by saying, “not wittingly.”
It has since been proven – and is a matter of government record – that the NSA’s global trawl of data has pulled in the communications of Americans by the millions over the last five years. Quite a record for a surveillance authority enacted by Congress to surveil foreign targets on foreign soil.

See for yourself the misuse of this authority revealed in a rare public scolding of the FBI by the secret FISA Court over “widespread violations” of Americans’ privacy with Section 702 data. Or look at the revelations issued by that court of specific instances of how the FBI misused warrantless Section 702 material against U.S. political figures. It is widely reported that the FBI has freely helped itself to Section 702 data, searching the data of more than 19,000 congressional donors, a state judge, and Members of Congress.

The Hunter Biden Laptop Deceit

In 2016, former Director Clapper was joined by former CIA Director John Brennan, former NSA General Counsel Glenn Gerstell, and former NSA Deputy Director Richard Ledgett, along with almost 50 other former senior intelligence officials in signing a letter released just before the 2020 election. They chimed in on a New York Post story about the contents of a laptop owned by Joe Biden’s son, Hunter.

This time, the Fibbing Four solemnly told the American people that the contents of the Hunter Biden laptop had “all the classic earmarks of a Russian intelligence operation.” The FBI later determined that the emails and contents of the laptop were “not tampered with or manipulated.” Even The New York Times was forced to report that the laptop and its contents were genuine.

The irony is that former intelligence officials, abusing their continued access to classified information to skew a national election, is about the most Russian thing they could do.

Misinformation About Reform Legislation

Now Director Clapper, and his Hunter Biden colleagues Brennan, Gerstell, and Ledgett, have fired off another letter. This one is directed at Congress telling Members not to allow any reform amendments to the Foreign Intelligence Surveillance Act authority, Section 702, because that would degrade the government’s ability to protect Americans.

“If Congress fails to authorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time,” they write, joined by enough of their colleagues to get the number of signatories up to around 50. “As Members of Congress know, we face sophisticated threats from China, Russia, Iran, and North Korea, including the real possibility of devastating cyber-attacks and state-sponsored terrorism directed at Americans.”

These are, of course, real and active threats. But the Fibbing Four gloss over the fact that all of the reform proposals being proposed in Congress contain exceptions for “exigent circumstances.” These exceptions would allow intelligence agencies to react to time-sensitive emergencies, such as the so-called “ticking time bomb” scenario. These reform proposals also contain exceptions for cybersecurity and warrantless searches of metadata, requiring court approval only to examine the content of Americans’ communications.

Fool Me Once…

The good news is that Congress is getting wise to such shenanigans just before every vote. Before the last Section 702 reauthorization two years ago, the champions of the intelligence community put out a cryptic story about “a serious national security threat” that turned out to be theoretical, not imminent, reports about “Russian space nukes.”

Our advice to Congress is to look at the plain language of the reform legislation that allows the intelligence community to continue to defend America – while upholding our constitutional rights as well.
​
We can defend America and obey the Constitution at the same time. Don’t let anyone tell you otherwise.

Reading the private communications of Americans – without showing evidence of wrongdoing to obtain a warrant from a judge – violates the Constitution, disrespects American values, and opens the door to abuse.

Yet Congress is once again caught up in a debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), with some claiming that a warrant rule would endanger lives and national security.

The Center for Democracy and Technology and PPSA teamed up to brief Congress on the realities and actual numbers behind these claims about the examination of “U.S. person” queries – searches of people in America whose texts, emails, and calls get caught up in the National Security Agency’s global trawl of data.

Here are some of the myth-exploding facts from our brief.

MYTH #1: U.S. person queries are immensely important in a broad array of situations, making it dangerous to place restrictions on this important tool.

REALITY: Queries only provide value in a limited set of situations – and the proposed warrant rules provide exceptions to account for all of them.

Testimony from the intelligence community, the President’s Intelligence Advisory Board, and the Privacy and Civil Liberties Oversight Board uncovered only a few distinct scenarios in which U.S. person queries provided value. And the proposed warrant rule includes exceptions to the warrant requirement that account for them.

These exceptions include tracking the signatures of cyber threats, gaining consent from Americans targeted for foreign assassination and kidnapping plots, and tracking Americans’ contacts with suspicious foreign contacts. The government has yet to produce a single instance in which a warrant requirement would have impeded such efforts. Even then, the exceptions in reform proposals allow warrantless inspection of metadata – who contacted whom – leaving the government free to track Americans who are communicating with terrorists or foreign spies.

MYTH #2: U.S. person queries need to be done quickly and efficiently in the case of a “ticking time bomb,” and a warrant rule would slow the process down in a manner that endangers Americans’ lives.

REALITY: The government has never shown that queries provide such time-sensitive responses. But if they are needed, and the clock is ticking, once again the reform proposals include exceptions for such “exigent circumstances” scenarios.

In short, the exigent circumstances, cybersecurity, consent, and metadata exceptions to the proposed warrant requirement allow the government to respond to threats quickly.

MYTH #3: Warrants are not feasible given the scale of U.S. person queries – adding a warrant requirement would overwhelm intelligence agencies and the courts.

REALITY: By permitting warrantless metadata queries – such as communications logs – the warrant rule ensures that the government will not need to go to court frequently.

In 2023, the most recent year for which data is available, the FBI conducted queries for over 57,000 unique U.S. person terms, an unacceptable degree of government overreach and fishing expeditions.

Only 1.58 percent of the FBI’s U.S. person queries resulted in FBI agents accessing the content of communications. Thus, even if queries continued to be conducted at the prior rate of 57,000 annually – which is unlikely given that many of these queries were improper or overly broad – a warrant would be potentially applicable to less than 1,000 queries a year.

That’s less than three such queries per day on average, hardly an insuperable burden on the FBI and the courts.

Because the proposed warrant rule would permit warrantless metadata queries – only requiring court approval to access the content of messages – agencies would be able to confirm when a query will yield a “hit” before devoting any time and effort to seeking a warrant.

And most of those two to three queries per day would fall under the exceptions to the warrant requirement.

Our brief to Congress concludes:

“Americans’ basic rights should not be secondary to bureaucratic hurdles and staffing limits. The exceptions and exemptions built into the warrant proposal would allow the government to remain within the boundaries of the Constitution while also having the means to protect national security.”

​“National security and civil liberties are not mutually exclusive,” said Rep. Andy Biggs (R-AZ). “We can give our intelligence professionals the tools they need to target foreign threats while ensuring that Americans are not subjected to unconstitutional surveillance.”
 
Rep. Biggs last week underscored that philosophy by reintroducing the Protect Liberty and End Warrantless Surveillance Act. His bill would bring powerful reforms to Section 702, which authorizes federal intelligence agencies to spy on foreign targets on foreign soil but has often been used by the FBI to spy on Americans. This authority must be reauthorized by April 20 or expire.
 
Among its many provisions, the Protect Liberty Act would:
 

• Require a warrant before information collected under Section 702 could be used to inspect the communications of people inside the United States.

 

• Bar the government from purchasing or obtaining Americans’ personal digital data – a practice currently carried out by more than a dozen federal agencies, from the FBI to the IRS.

 

• Sunset the “Make Everyone a Spy” provision slipped into the last reauthorization that requires virtually every business or house of worship to secretly facilitate spying on its customers and congregants.

 

• Require the secret FISA courts to appoint legal experts (amici curiae) with security clearances to represent the civil liberties of the American people.

 

• Reauthorize Section 702 for two years from this April, ensuring that the next reauthorization does not arise during a budget or election season, when Congress will be too busy to take a careful look at how this authority has worked and how it might need to be adjusted.

 
Despite talk on the Hill of a “clean” reauthorization of Section 702, Rep. Biggs’ bill should get the attention of civil liberties champions across the ideological spectrum, from the House Freedom Caucus to Demand Progress.
 
Polls show that vast majorities of Americans in both parties are deeply concerned about government agencies that treat privacy as a luxury and the Fourth Amendment as a nuisance.
 
“The Protect Liberty Act is the most important government surveillance reform measure in several generations – protecting Americans’ constitutional rights while leaving in place important authorities to keep the American people safe from foreign threats,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor to PPSA.
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“FISA Section 702 was enacted by Congress to enable the surveillance of foreign threats on foreign soil, but has been used in recent years by the FBI for domestic spying,” Goodlatte said. “It has been abused to spy on millions of Americans, including judges, sitting Members of Congress, 19,000 donors to a congressional campaign, and countless others.
 
“PPSA commends Subcommittee Chairman Andy Biggs for bringing this reform into the debate over the reauthorization of Section 702,” Goodlatte said. “We are hopeful that Republicans and Democrats on the House Judiciary Committee will once again pass it and that President Trump will sign it into law."

​The Wisconsin Supreme Court recently upheld the conviction of Andreas W. Rauch Sharak for possession of child pornography. This crime is contemptible – and we support every lawful means to apprehend and convict the vile people who traffic in such material.

But it needs to be pointed out that in this case, the court and prosecutors sidestepped the need for a probable cause warrant, as required by the Fourth Amendment. In so doing, they inadvertently widened a loophole in the treatment of data held by third parties, from Google to Apple, from servers to the cloud. As a result, the privacy of law-abiding Americans and the security of our most personal and intimate data are now more vulnerable than ever.

The Case

Rauch Sharak’s conviction involves Google, which routinely flags files containing potential child sexual abuse material (CSAM) for the National Center for Missing & Exploited Children. If that non-profit organization deems files to contain child pornography, they are forwarded on to law enforcement. In this case, the files were referred to the Jefferson County Sheriff’s Office in Wisconsin, where a detective viewed them without a warrant.

The detective then obtained a search warrant to search Rauch Sharak’s home and devices. This resulted in Rauch Sharak being charged with 15 counts of possession of child pornography.

Wisconsin’s Ruling

The state’s highest court upheld a circuit court’s conviction on the grounds that Google had not acted as “an instrument or agent of the government.” This distinction matters, because if Google was deemed a government actor, its searches would necessarily be subject to the Fourth Amendment’s requirement that law enforcement obtain a warrant based on individualized probable cause before conducting a search.

Nor did the court believe that the detective needed to obtain a warrant to view the forwarded files.

“In this case, we determine that law enforcement did not need a warrant before opening and viewing the files in the CyberTip because law enforcement’s search falls under the private search doctrine,” the Wisconsin Supreme Court held. “Under that doctrine, the government does not conduct a ‘search’ under the Fourth Amendment when it repeats a search by a private actor and stays within the scope of the private search.”

The court also stated:

“Seemingly without exception, federal circuit courts and other state supreme courts have held that ESPs [electronic service providers] like Google are private actors when searching for CSAM on their platforms.”

We commend Google for its “zero tolerance” policy for CSAM in its terms of service. But when the government gets involved, so should the Fourth Amendment.

PPSA’s Brief

In our amicus brief before the Wisconsin Supreme Court, PPSA took issue with such “overbroad interpretations of the third-party doctrine.”

The court overlooked a major exception to the private-actor theory – Carpenter v. United States (2018) – in which the U.S. Supreme Court unanimously held that obtaining a suspect’s historical cell-site data constituted a search under the Fourth Amendment.

We told the court that “Carpenter recognized that the Fourth Amendment protects privacy interests that would have been recognized as reasonable at the time of the Founding, notwithstanding advances in technology that make encroachments upon such interests easier.”

Like the postal systems of early America, the Founders would have easily understood that individuals maintain an expectation of privacy when entrusting personal communications or materials to third parties for storage or delivery. Today, however, it is nearly impossible to store private information without relying on third-party providers like Google, Apple, Amazon, and others. For users, the password-protected accounts of Google Photos would have established a subjective expectation of privacy.

The evidence also clearly shows that when Google conducts automated searches, it may function less like a private actor and more like a deputized investigator. At least one court applied state law holding a third party that possesses CSAM-detection software may face liability if it fails to deploy it. Google – a heavily regulated company operating under significant legal pressure – thus begins to resemble a government partner, raising serious Fourth Amendment concerns.

In the wake of this ruling, the government’s ability to compel private actors like Google to perform warrantless searches will only grow. Powers used today to catch CSAM crimes could be used tomorrow to open up our emails, texts, personal photos, and online searches to the government for any reason it chooses. According to the Wisconsin Supreme Court’s interpretation of the private search doctrine, if Google viewed your data, then the government can too. That means the Fourth Amendment becomes a dead letter for any data entrusted to a third party, i.e., nearly all data in our digital age.
​
As lower courts continue to chip away at Carpenter, the Supreme Court has an opportunity in United States v. Chatrie to revisit these issues for the first time since Carpenter. We hope they decide to reaffirm the clear, bright constitutional line defining when digital searches conducted through private intermediaries become government action – and when Americans’ most personal data must be protected from unreasonable searches and seizures.

The FBI calls them “assessments.” Americans experience them as investigations. 
 
A new Government Accountability Office (GAO) report suggests that many supposedly preliminary inquiries function as probes in waiting – particularly when they involve politics, journalism, or religion. According to the report, posted by the Cato Institute, more than 1,000 individuals and organizations have been subjected to preliminary assessments for investigation, a scope that should trigger immediate congressional concern. (Hat tip to Cato’s Patrick Eddington.)
 
The most alarming category involves so-called “Sensitive Investigative Matters,” or SIM assessments. These are FBI inquiries potentially into political campaigns and candidates, elected officials, journalists, religious leaders, or any other Americans engaged in core First Amendment activities. If any government scrutiny demands transparency and restraint, it is surveillance that begins with our rights to freedom of speech, belief, and association.
 
The GAO found that the FBI converted 48 percent of SIM assessments into Preliminary or Full Investigations. Eddington reports that these sensitive cases were 3.5 percentage times more likely to escalate than ordinary assessments – a statistical red flag for anyone told these probes are narrow, cautious, or exceptional.
 
Eddington writes:
 
“That’s especially alarming since, under Preliminary or Full Investigations, the agents running the case can employ wiretaps or other extremely intrusive and clandestine investigative techniques.”
 
Those tools – from electronic surveillance to confidential informants and covert collection – once deployed, are difficult to unwind. That is why Congress must demand answers before, not after, it reauthorizes Section 702 of the Foreign Intelligence Surveillance Act, which expires in April.
 
Before granting renewed surveillance authority, lawmakers should require the FBI to disclose whether SIM assessments have targeted:
​

• Members of Congress

 

• Political candidates and parties

 

• News organizations, think tanks, and NGOs

 

• News reporters and opinion journalists

 

• Churches, temples, and mosques.

At a minimum, the Bureau should provide the relevant oversight committees – especially the House Judiciary Committee – with a full accounting of past SIM targets and the total number of assessments elevated into full investigations. Congress should also ask who authorized these escalations. Were investigative decisions influenced by political appointees? 
 
Two questions cut to the core of our concerns about protecting civil liberties. Why are First Amendment-sensitive assessments more likely to escalate than ordinary cases? And was Section 702 data – intended for foreign intelligence collection abroad but routinely used for warrantless “backdoor” searches of Americans – part of the analytical process driving these decisions?
 
The Founders knew the danger of unchecked investigations aimed at political and religious dissent. They rebelled against general warrants that allowed agents of the Crown to search first and justify later. SIM assessments risk reviving that same model – quiet surveillance justified by internal labels rather than public law.
 
Surveillance powers are easy to grant and hard to retract. Congress should not renew them without first understanding how existing authorities have been used against Americans exercising our most basic freedoms.
 
Congress should make it clear: No answers. No reauthorizations.

The Project for Privacy & Surveillance Accountability is asking the U.S. Supreme Court to consider whether the Fourth Amendment allows law enforcement to use geofence warrants to retroactively track the movements of everyone in a defined area. These so-called “reverse warrants” involve law enforcement’s request for information from technology companies – like Google, Apple, Snapchat, Lyft, or Uber – that allows them to identify potential suspects in a crime.
 
This case began with a robbery in 2019 of $200,000 from a credit union in Midlothian, Virginia. Detectives soon hit a dead end in a search for suspects. So they served Google with a geofence warrant to provide certain cellphone data for everyone who passed through a circumscribed area around the credit union.
 
As a result, people suspected of no crime had their personal information examined by police. Targets included residents of a nursing home, diners and wait staff at a Ruby Tuesday restaurant, and guests who had checked into a Hampton Inn. The search led to the arrest and guilty plea of one Okello T. Chatrie, who now seeks to exclude this evidence on constitutional grounds.
 
Federal Judge Mary Hannah Lauck noted that because Google logs cellphone users’ location 240 times a day, technology gives police “an almost unlimited pool from which to seek location data” in a broad area in which everyone has “effectively been tailed.” But the U.S. Court of Appeals for the Fourth Circuit, sitting en banc to review a divided panel decision, held that this geofence warrant did not violate the Fourth Amendment.
 
The U.S. Supreme Court is now set to take up this question. In our brief, we are telling the Court that such dragnet surveillance is fundamentally incompatible with the Fourth Amendment’s core protections. 
 
Geofence Warrants Are “Digital General Warrants”
 
One of the primary abuses that motivated the Founders to create the Fourth Amendment was the use in colonial times of general warrants – broad search authorizations that allowed the King’s agents to rummage through private lives and property without individualized suspicion. Geofence warrants are their modern equivalent.
 
Instead of naming a person or place to be searched based on probable cause, geofence warrants similarly authorize the government to sift through massive location databases to identify people who might be worth investigating.
 
PPSA told the court that these warrants invert the constitutional order – everyone becomes a suspect first, and probable cause, if it appears at all, comes afterward.
 
The Supreme Court’s Carpenter Decision Was Not a Narrow Exception
 
Lower courts have struggled to apply the Supreme Court’s landmark decision in Carpenter v. United States (2018), which held that people have a reasonable expectation of privacy in long-term cellphone location records, even when those records are held by a third party. In Chatrie, the Fourth Circuit treated Carpenter as a narrow exception limited to long-term tracking of a single suspect. PPSA demonstrates that this take misreads the case entirely. 
 
Carpenter reaffirmed a broader principle: Fourth Amendment protections must preserve the level of privacy that existed at the nation’s founding, even as technology evolves. The fact that data is held by a third party – or that the government demands only a “slice” of a much larger tracking database – does not erase reasonable expectations of privacy. A two-hour window into a comprehensive location history can still reveal intensely private information – where someone worships, seeks medical care, attends political meetings, or simply lives their daily life.
 
PPSA is telling the Court that the privacy concerns raised by geofence warrants are even more severe than those in Carpenter, because they involve mass surveillance of unknown and unsuspected individuals. This is not targeted policing. It is suspicionless data mining.
 
Your Privacy Rights Depend on Where You Live
 
Courts across the country are sharply divided on this issue. The Fourth and Eleventh Circuits have suggested that geofence searches may not even trigger the Fourth Amendment. By contrast, the Fifth Circuit has correctly recognized that geofence warrants are unconstitutional in nearly all circumstances because they lack particularity and probable cause.
 
That split leaves Americans’ privacy rights dependent on geography, and in the case of Texas, whether state or federal proceedings are involved. PPSA urges the Supreme Court to step in now, before this powerful surveillance tool becomes permanently normalized.
 
The Constitution Must Keep Up with Technology
 
As PPSA warns, geofence warrants are only the beginning. We told the High Court:
 
“Fourth Amendment protections are not categorically lost when a person shares or stores his data with a third party while maintaining reasonable expectations and assurances of privacy. The Court should …  prevent a contrary understanding of Carpenter from continuing to erode Americans’ privacy – especially now, as third-party storage becomes more ubiquitous and artificial intelligence becomes powerful enough to piece together intimate information from seemingly innocuous details about a target’s life.”
 
The data that this practice puts at risk is not limited to location. The government has used other forms of these “reverse search warrants” to extract other private data, such as identifying anyone who has searched for a specific phrase or forcing commercial genealogy companies to allow access to their DNA databases.
 
Advances in artificial intelligence already allow law enforcement to infer locations from photos and videos, even when no geolocation data is attached. Without firm constitutional limits, today’s location dragnet could become tomorrow’s visual surveillance dragnet.
 
The Fourth Amendment’s precise wording is designed to prevent unchecked surveillance. PPSA’s calls on the Supreme Court to reaffirm that Americans do not surrender their constitutional rights simply by carrying a cellphone.

​The Fourth Amendment to the Constitution requires law enforcement to obtain a warrant supported by probable cause before entering our homes. That very American principle has roots in English law, in the spirit of the 18th century prime minister who said that “the poorest man may, in his cottage, bid defiance to all the forces of the Crown.”

But another doctrine, the “community caretaking” standard, emerged from an understanding that the police may, in certain emergencies, enter a home without a warrant. In Brigham City v. Stuart (2006), the Court allowed police entry when there is an “objectively reasonable basis” for believing that someone inside is in danger of physical harm or in need of aid.

The U.S. Supreme Court in 2021 found, in Caniglia v. Strom, limits to this “community caretaking” exception to the warrant requirement. Last week, however, the Court took a step back in favor of warrantless entry in Case v. Montana, finding reason in common law to uphold the conviction of William Case.

A Montana resident, Case had repeatedly threatened suicide. When police showed up to perform “a welfare check” at Case’s home after receiving a distressing call from his girlfriend, they saw an empty holster and what appeared to them to be a suicide note on a table. Case had also threatened to kill any police officer who entered his home. The police eventually entered Case’s home without a warrant, found Case hiding in a closet with a black object in his hand, and shot him in the stomach.

Case survived and went to court to seek the exclusion of any evidence obtained from this warrantless intrusion. The Supreme Court ruled unanimously against him. The facts of this case, like the proverbial camel’s nose thrust under a tent, are undeniably ugly. But ugly or not, Case v. Montana is still a camel’s nose – one that portends danger for privacy.

This case has two underlying complexities to keep in mind whenever the Court reviews future cases on the emergency entry exception.

The first concern is the Court’s central reliance on common law. Justice Neil Gorsuch, in a concurring opinion, wrote that: “From before the founding through the present day, the common law has generally permitted a private citizen to enter another’s house and property in order to avert serious physical harm.”

The problem with Justice Gorsuch’s reliance on this “accumulated learning of common law” is that it is still trumped by the U.S. Constitution. There is no “community caretaking exception” to be found in the Fourth Amendment.

A second danger is that the community caretaking exception will be broadened.

In our brief to the Court, we warned about about 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 of private information.”

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 an American worships, banks, organizes political activities, and maintains a network of friend and associates.
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When the Court lowers the bar for warrantless entry into a home, it weakens constitutional protections everywhere else – especially in a world where our most intimate lives reside on digital devices. If this logic continues unchecked, today’s emergency entry into a house could tomorrow become emergency entry into a phone, a cloud account, or an entire digital life. That would be the kind of “general warrant” the Fourth Amendment was written to prevent.

​Fresh on the heels of the Bill of Rights’ 234th birthday comes a salient reminder of just how difficult it is for those in power to resist abusing their authority, and why the Fourth Amendment in particular is every bit as relevant today as it was in 1791.

Wilmer Chavarria is suing the U.S. Department of Homeland Security (DHS) for an incident in Houston in July. According to his lawsuit, U.S. Customs and Border Patrol (CBP) agents detained him, demanded his passwords, then searched the contents of his devices as he tried to enter the country at George Bush Intercontinental.

Actually, make that returning home rather than trying to enter – Wilmer Chavarria is as American as tarta de manzana. He’s a school superintendent in Vermont, where apples are the state fruit and apple pie is literally the state pie (either à la mode or with cheddar). Born in Nicaragua, Chavarria became a citizen of the United States in 2018 after coming here a full decade earlier to do that most American of things – get an education. That day in July, this American citizen was returning home after visiting his mother and family in Nicaragua.

CBP separated him from his husband, then interrogated Chavarria for several hours before releasing him without explanation. Along the way, he was informed that he had no Fourth Amendment right to resist. The primary problem with that argument is, of course, that the Fourth Amendment applies to all American citizens. It clearly states that no one living under the authority of the Constitution must endure unreasonable search and seizure, and that a warrant, based on probable cause, must be obtained by authorities whenever one’s personal effects are to be searched.

To be clear, these protections do not apply to noncitizens seeking to enter the country. Chavarria was utterly and completely covered the moment he finished swearing “so help me God,” on the day of his naturalization. 

Another potential problem with the DHS/CBP argument is a landmark 2014 decision in which the U.S. Supreme Court declared that digital devices like cellphones are covered by the amendment’s original language of “persons, houses, papers, and effects.” But the ruling left the notorious “border exception” intact, which may explain CBP’s inclination to take a constitutional mile with the mere inch the parchment actually gives them. With any luck, Chavarria’s case may breathe renewed life into the space that United States v. Smith clawed back from the border exception in 2023.

Despite such rulings, border agents seem not only unfazed but also emboldened. According to research by the Pacific Legal Foundation, warrantless searches of electronic devices have quadrupled in the decade since the high court’s original 2014 ruling.

When asked about cases like Chavarria’s, CBP demurs. These tactics are “rare” and “highly regulated” according to the agency’s assistant commissioner Hilton Beckham. She also insisted to the Houston Chronicle that such searches are only used to combat serious crimes. “Lawful travelers,” she says, need not fear.

By such logic, Chavarria must have somehow represented a danger to national security. Perhaps New England schoolchildren, gay marriage, and naturalized Nicaraguans are a greater existential threat to the future of the republic than anyone previously realized.

Or it could be good old fashioned political targeting. In April, mere months before his trip, Chavarria refused to sign his state’s request to certify to the U.S. Department of Education that Vermont was not using “illegal DEI practices.” And he did so on the record, noting that his district is the most diverse in the state. The federal request was one that some 19 states, eventually including Vermont, simply refused to comply with. Agree or disagree with that position, it should be a matter of serious concern for people of all political stripes if the government applied a political standard to its warrantless intrusion into an American’s digital devices.

It is perhaps no coincidence, then, that before he even boarded his domestic flight back to Vermont that day, Chavarria received an email. In it, CBP announced that his longtime TSA Global Entry status had been revoked because he suddenly “did not meet program eligibility requirements.”
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So it’s come to this: If you’re traveling abroad, consider using burner phones and leaving your personal and work devices at home.

​If you’ve read Rick Atkinson’s prize-winning books on the American Revolution or watched Ken Burns’ documentaries on that founding event, you know how deeply Americans have always valued privacy. The Revolution itself was sparked, in part, by outrage over the British Crown’s use of “general warrants” – sweeping authorities that allowed the King’s agents to ransack homes, warehouses, offices, and ships at dock in search of anything they deemed suspicious.

Now, nearly 250 years after the Declaration of Independence, London is at it again.

This time, the British government is executing a plan to override the security and encryption protections built into U.S. technology products – exposing the private data of Americans, and potentially users around the world, beginning with Apple devices.

The CLOUD Act — and a Deal Gone Wrong

PPSA Senior Policy Advisor Bob Goodlatte knows this territory well. A former congressman from Virginia and Chairman of the House Judiciary Committee, Goodlatte helped lead passage in 2018 of the Clarifying Lawful Overseas Use of Data Act, better known as the CLOUD Act.

The CLOUD Act allows the United States and trusted foreign partners to enter into data-sharing agreements, enabling law enforcement to seek data through warrants or subpoenas regardless of where that data is stored. But Congress paired this authority with firm guardrails to protect privacy, civil liberties, and the rule of law.

One of those agreements – the U.S.–UK Data Access Agreement (DAA) – has now veered sharply off course.

“I am deeply troubled by how the United Kingdom has taken advantage of our goodwill,” Goodlatte wrote in a letter sent late last week to Attorney General Pam Bondi.

Britain’s Abuse of Surveillance Powers

At issue is the UK’s use of so-called Technical Capabilities Notices, or TCNs, issued under the UK Investigatory Powers Act. These secret orders can compel U.S. technology companies to weaken, delay, or suspend the deployment of essential security features, including end-to-end encryption.

“The threat to Americans’ privacy from these measures is real,” Goodlatte warned, whether the UK’s actions affect U.S. companies’ global products or are limited to services offered in Britain. Even in the latter case, he explained, the consequences are profound: increased risk of global surveillance, compromised digital infrastructure, and a direct assault on the protections Congress demanded when it approved the agreement.

Approval Rights and Gag Orders on U.S. Companies

Goodlatte also pointed to a particularly alarming requirement: U.S. companies must notify the British government before rolling out security upgrades – precisely the kind of foreign leverage Congress explicitly sought to prevent.

The CLOUD Act’s promise of streamlined cross-border cooperation, he wrote, “was never intended by Congress to be leveraged by a foreign partner to compel any form of ‘backdoor’ access or other types of decryption assistance.”

Even worse, UK policy reportedly imposes gag orders that prevent U.S. companies, starting with Apple, from disclosing this interference even to the U.S. government itself.

The Only Remedy: Suspend the Agreement

The CLOUD Act anticipated this scenario. Under the DAA, the United States may suspend or terminate the agreement when a partner government’s laws or practices materially undermine its privacy and civil liberties commitments.

“Accordingly,” Goodlatte wrote, “I urge the Department of Justice to invoke Article 12.3 and suspend the Agreement unless and until the UK withdraws its use of TCNs.”

During passage of the CLOUD Act, Goodlatte insisted on strong congressional oversight of the law’s implementation. Now, he is calling on the Justice Department to enforce the deal’s terms – and protect Americans from a digital revival of the general warrants our founders fought to abolish.
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Expect sitting Members of Congress to take up that call as well.

​Imagine a dish called Surveillance Stew. It’s served anytime multiple privacy-threatening technologies come together, rather like a witch’s brew of bad ideas. It's best served cold.

The latest Surveillance Stew recipe includes location data, social media, and facial recognition. Nicole Bennett, who studies such things, writes in The Conversation that this particular concoction represents a turning point: borders are no longer physical but digital. The government has long held that the border is a special zone where the Fourth Amendment has little traction. Now the government is expanding border rules to the rest of America.

Immigration and Customs Enforcement (ICE) has put out a call to purchase a comprehensive social media monitoring system. At first glance, Bennett notes, it seems merely an expansion of monitoring programs that already exist. But it’s the structure of what’s being proposed that she finds new, expansive, and deeply concerning. “ICE,” she writes, “is building a public-private surveillance loop that transforms everyday online activity into potential evidence.”

The base stock of Surveillance Stew came with Palantir’s development of a national database that could easily be repurposed into a federal surveillance system. Add ICE’s social media monitoring function and the already-thoroughgoing Palantir system becomes “a growing web of license plate scans, utility records, property data and biometrics,” says Bennett, “creating what is effectively a searchable portrait of a person’s life.”

Such a technology gumbo seems less a method for investigating individual criminal cases than a sweeping supposition that any person anywhere in the United States could, at any moment, be a “criminal.” It’s a dragnet, says Wired’s Andrew Couts, noting that 65 percent of ICE detainees had no criminal convictions. Dragnets are inimical to privacy and corrosive to the spirit of the Constitution.

Traditional, law-based approaches to enforcement are one thing – and enforcement, of course, is ICE’s necessary job. The problem now, warns Bennett, is that “enforcement increasingly happens through data correlations” rather than the gathering of hard evidence.

We agree with Bennett's conclusion that these sorts of “guilt by digitization” approaches fly in the face of constitutional guardrails like due process and protection from warrantless searches. To quote Wired’s Couts again, “It might be ICE using it today, but you can imagine a situation where a police officer is standing on a corner and just pointing his phone at everybody, trying to catch a criminal.”

The existence of Palantir’s hub makes it inevitable that ICE’s expanded monitoring capability will migrate to other agencies – from the FBI to the IRS. And when that happens, what ICE does to illegal immigrants can just as easily be done to American citizens – by any government entity, for any reason.
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When our daily lives are converted into zeroes and ones, the authorities can draw “borders” wherever they want.

​Outrage, the currency of our times, is being minted at a furious rate over Special Counsel Jack Smith’s use of grand jury subpoenas to spy on the telephone metadata records of eight senators and one congressman around the time of the Jan. 6th 2021 assault on the U.S. Capitol.

One statement of majestic and appropriate outrage – the gold standard, if you will – came from Sen. Rand Paul (who was not among those surveilled). He wrote in Breitbart:

“Our Founding Fathers objected to general warrants that allowed soldiers to go from house to house searching homes of American colonists, [and] I think they would be equally horrified by a government that goes from phone to phone collecting data on all Americans.”

Then there is Sen. Lindsey Graham, one of the targets of Smith’s surveillance, who shouted (rhetorically, starting at 2:35) at Attorney General Pam Bondi, “Can you tell me why my phone records, when I’m the Chairman of the Judiciary Committee, were sought by the Jack Smith agents, why did they ask to know who I called and what I was doing from January 4th to the 7th, can you tell me that?”

It's a good question.

David Corn, writing in the progressive Mother Jones, had his own angle of outrage – that President Trump “incited a violent assault on the Capitol, and for hours – as cops were being beaten and Democratic and Republican legislators were being threatened – did nothing in the hope this domestic terrorism would benefit him and allow him to stay in power …

“Should that not have been thoroughly investigated?”

Another good question.

Here’s our take. Yes, after the trashing of the U.S. Capitol, savage beatings of Capitol police, and the erection of a gallows to “hang Mike Pence,” it would have been astonishing for the government not to investigate. But when the executive branch spies on the metadata of Members of Congress – data that can yield a wealth of private information – you would expect a special prosecutor, appointed by one president to investigate his predecessor and likely future opponent, to dot all “i’s” and cross all “t’s.”

Instead of adhering to a strict constitutional standard, Jack Smith predicated his surveillance of U.S. senators and a representative on a subpoena issued by a grand jury. Such a panel, as New York Chief Judge Sol Wachtler famously said, would gladly indict a ham sandwich if that was what the prosecution wanted.

In his Breitbart piece, Sen. Paul quotes Chief Justice John Roberts when the Supreme Court held in Carpenter v. United States (2018) that geolocation from cellphone metadata was a privacy interest protected by the Fourth Amendment. Justice Roberts, for the majority, wrote, “this Court has never held that the Government may subpoena third parties for records in which the subject has a reasonable expectation of privacy.”

Senators, like everyone else, deserve a reasonable expectation that their phone records are private. Of course, senators – also, like everyone else – are not exempt from lawful investigations. But when one branch investigates another – when one political party investigates its opponents – is it too much to ask that the government respect the Fourth Amendment? If Jack Smith had a good reason to surveil nine Members of Congress, he should have made his case for probable cause before a neutral magistrate and obtained a warrant – as the Constitution requires.
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That Smith instead chose to slather two pieces of bread with mustard and add a slice of ham indicates (mixed metaphor alert) that he was on nothing more than a fishing expedition. When politics intersect with criminal law, prosecutors must adhere to the most rigorous standards. That is in keeping with the character of an exceptional nation. We must not lose it.