As the famous movie line goes, “what we’ve got here is a failure to communicate.” Somehow, the U.S. Supreme Court keeps establishing clear precedents in narrowing warrantless entry into homes, and lower courts continue to fail to apply those precedents in nearly identical cases.
 
The latest such case is Torcivia v. Suffolk County, New York, in which the U.S. Court of Appeals for the Second Circuit somehow failed to understand the precedent set by two recent Supreme Court opinions. It upheld a “special needs exception” to the Fourth Amendment that allowed the government to enter a home to seize the firearms of a man suspected of no crime and under no penal control or supervision.
 
The case involves one Wayne Torcivia, a 57-year-old man without a history of violence, mental health treatment or suicide attempts. The police responded to a call from Torcivia’s teenage daughter, who said he was yelling at her and acting strangely. In a series of miscommunications, the police threatened to tase Torcivia – and when Torcivia said that he had a heart condition – an officer somehow understood that as a desire to die from tasing.
 
Wayne Torcivia was taken to a psychiatric evaluation center. When police noticed that he was a legally registered owner of firearms, the police demanded he turn over the combination to his gun safe before he could be released. Torcivia resisted, but finally did so. The police entered his home and confiscated his firearms.
 
In its ruling, the Second Circuit ignored the precedent set by Lange v. California, in which the Supreme Court disallowed the ability of an officer to follow a suspect into his garage. To the astonishment of many legal observers, the Second Circuit also ignored a recent, unanimous Supreme Court opinion in a near-identical case, Caniglia v. Strom. In that case, the Supreme Court found that the police cannot enter a person’s home without a warrant by claiming to act on non-investigative, “community caretaking” capacity.
 
In a 9-0 decision, the Supreme Court continued a long tradition of refusing to expand the scope of warrantless entry into the home. PPSA filed briefs in both Lange and Caniglia. PPSA has now filed a petition for a writ of certiorari asking the High Court to hear Torcivia. PPSA’s brief notes that the Second Circuit referred to Caniglia only once – and in a footnote. The petition explained:
 
“Expanding that limited exception to include the broader ground covered by the rejected ‘community caretaking’ exception both blatantly disrespects this Court’s decision in Caniglia and deepens a pre-Caniglia split. … [T]his case is a strong candidate for summary reversal given its utter disdain for this Court’s recent Caniglia decision rejecting a warrantless search on nearly identical facts.”
 
The jurisprudence of Supreme Court Justices across the ideological spectrum evinces a deep-seated respect for the sanctity of the home as a sanctuary of privacy. The clarity of the Supreme Court on denial of warrantless searches into the home is matched by the clarity of the Fourth Amendment.
 
It appears that the Supreme Court will once again have to instruct lower courts on the plain meaning of plain language.

​PPSA General Counsel Gene Schaerr filed a lawsuit today against the Federal Bureau of Investigation and the Department of Justice National Security Division for their lack of response to requests for information about possible government interference in the 2016 election.
 
“I have been given no choice, given these agencies’ stonewalling of our Freedom of Information Act (FOIA) requests for documents related to surveillance of a presidential election,” said Gene Schaerr.
 
The original FOIAs were filed by Schaerr in April 2019. The requests concerned surveillance of Trump campaign aide Carter Page, which under the “two hops” rule allowed the FBI great latitude in surveilling the Trump campaign, transition, and White House. Among the documents sought:
 

• The “Woods file” from the FBI – which attempts to verify the accuracy of alleged facts in a Foreign Intelligence Surveillance Act (FISA) investigation – related to the FISA order authorizing surveillance of Carter Page.

 

• All documents and communications referring to the now-discredited bogus opposition research file, the “Steele dossier,” and its use in authorizing the Carter Page FISA surveillance application.

 
The FOIA requests sought documents and communications relating to any defensive briefings of both presidential campaigns in 2016 by these agencies. It also sought documents about a Justice Department official, Bruce Ohr, and other officials who may have received information from outside of DOJ and the FBI, and then placed into the Carter Page applications.
 
“The only answer to these questions was to direct us to a few publicly available records,” Gene Schaerr said. “We have not received a substantive response from the FBI as required by law, and no response whatsoever from DOJ’s NSD. We won’t sit by and watch official dismissals of the law turn the venerable Freedom of Information Act into a joke.
 
“The government gives us no choice but to sue,” Schaerr said. “Whatever your view of the candidates in 2016, interference in a presidential campaign by federal investigators should worry Americans of all ideological stripes.”
 
PPSA will report the progress of the lawsuit.

In the 1990s, the chairman of the Commission on Protecting and Reducing Government Secrecy – the late, great Daniel Patrick Moynihan – said, “secrecy is a mode of regulation. In truth, it is the ultimate mode for the citizen does not even know that he or she is being regulated.”
 
The senator-scholar also wrote a book, Secrecy: The American Experience, that posited that government agencies classify information to avoid embarrassment, hide mistakes, and keep information to themselves (because information is power).
 
In late 2009, President Obama issued Executive Order 13526, meant to stem the tide of classification and to prevent agencies from classifying documents “for self-serving reasons or simply to avoid embarrassment.” In 2020, the Project for Privacy and Surveillance Accountability filed a Freedom of Information Act request before a host of government agencies seeking documents that would gauge how well they are complying with EO 13526.
 
PPSA just received a response from the Department of State, a “Self-Inspection Report” on classification and compliance from 2018. Some curious numbers arise out of this otherwise anodyne report that show the extent to which Moynihan’s critique remains correct, despite EO 13526.
 
The State Department reports:
 

• Nine instances in which information was classified when it shouldn’t have been

 

• Eight instances in which information was classified at the wrong level, either too high or too low

 

• Eleven instances in which classification decisions had either incomplete declassification instructions or none at all

 

• Six instances in which information was classified for a longer duration than necessary.

 
These numbers may seem small in comparison to the mountains of documents that require State Department classification decisions. The actual number of improper classification decisions is surely much higher than what is reflected in this self-assessment, since the review only drew from a “representative sample” of all State Department records – and only for one year since EO 13526 was issued.
 
What can we deduce from this pinhole glimpse? We know that since President Obama’s executive order was issued, the number of U.S. classified government documents rose from almost 55 million to 77.5 million documents in five years. 
 
Perhaps it is time for Congress to renew Moynihan’s Commission and ask why – despite the efforts of President Obama – our government is still classifying documents with abandon.

​Erik Jaffe, President of PPSA, drawing on his experience with more than 100 cases before the U.S. Supreme Court, looks ahead on what might be in store from the high Court.
 

• The chances of the Supreme Court leaker being caught and the counterintuitive impact the leak might have on the final opinion.

 

• The implications of the Court’s recent opinion on the state secrets privilege, a doctrine “which stops you from holding the government accountable for its unconstitutional or otherwise illegal behavior.”

 

• How a pending case on California’s regulation of pork producers reveals the potential for the culture wars between red states and blue states to create competing legal regimes across the nation.

 
Listen to Erik Jaffe, one of the nation’s leading constitutional lawyers, in this interview on the Pacific Research Institute’s Next Round podcast.

Former House Judiciary Committee Chairman and PPSA Senior Policy Advisor Bob Goodlatte today submitted testimony to a U.S. Senate Appropriations subcommittee, and earlier a House Appropriations subcommittee, about the revelation that the FBI uses Section 702 – authorized by Congress for foreign intelligence – to collect the communications of Americans millions of times each year.
​
In his testimony, Bob Goodlatte offers legislative language that would require the FBI to deliver annual reports on how many times it used search terms for U.S. persons under Section 702.

​Civil libertarians have long been concerned about the Bank Secrecy Act, which enlists banks to report to the government any “suspicious” activity – such as withdrawing $10,000 in cash in a single business day. Daring to take out one’s own money above a specified amount earns a bank customer an immediate report to the Federal Crimes Enforcement Network (FinCEN).
 
A draft bill, called the Transparency and Accountability in Service Providers Act (hat tip to Nicholas Anthony of the CATO Institute’s Center for Monetary and Financial Alternatives) would dragoon a host of non-bank employees to spy on their customers and report any activity deemed suspicious to FinCEN. One oddity about this bill is that we have not yet been able to locate a sponsor. But sources on the Hill tell us this draft is being widely circulated. 
 
Under this legislation, targets for being “deputized” as government informants are “financial gatekeepers,” including attorneys, trustees, those who wire money, financial services advisors, financial managers, and virtually the rest of the financial services industry.
 
Among the many millions of unsolicited deputies would include people involved in:

• The exchange of foreign currency, digital current, or digital assets

 

• The managing, advising, or consulting with respect to money or other assets

 

• The provision of cash vault services

 

• The processing of payments

 

• The wiring of money

 

• The direct or indirect filing of any return on behalf of a foreign individual, trust, or fiduciary

 

• The formation, registration, acquisition, or disposition of a corporation, limited liability company, trust foundation, limited liability partnership, partnership, association, or arrangement

 

• The sourcing, pooling, organization, or management of capital

 

• The process of acting as a trustee.

If this is a reputable strategy, why stop at only suspected financial crimes? All kinds of people could report all manner of potential wrongdoing, from Uber drivers, to waiters, to travel agents. Writer Anna Funder noted that in Hitler’s Third Reich, there was one Gestapo agent for every 2,000 people. In the Soviet Union, one KGB agent for every 5,830 people. In Communist East Germany, there was one Stasi officer for every 63 people.
 
If the Transparency and Accountability in Service Providers Act were to pass, and the 7.6 million employees of the financial services sector were “deputized,” there would be one informer for every 43 Americans.
 
Does Congress really want to make the United States more like these infamous police states of the past? 

​By the end of next year, Congress must reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) or let it expire. Congress let another significant authority – Section 215, which allowed the government to collect Americans’ information from business records – to expire in 2020. After the recent revelation that the FBI is conducting millions of searches of Americans’ information without a warrant, it is suddenly a little less unthinkable that Congress might actually allow 702 to lapse.
 
This thought has to occur to FBI Director Christopher Wray after two ranking Republicans on the House Permanent Select Committee on Intelligence and the House Judiciary Committee fired off a letter asking for detail about the recent report that the FBI conducted more than 3.3 million queries on people in the United States from December 2020 to November 2021. Given that these Republicans, Michael R. Turner and Jim Jordan, are believed by most political prognosticators to likely chair their respective committees after the upcoming elections, one would expect that Director Wray is pondering the letter on his desk with a new seriousness.
 
Reps. Jordan and Turner, noting that U.S. person queries had jumped 250 percent from the prior year, asked for the total number of unique query terms that involve U.S. citizens and legal aliens. They also asked for “an explanation of the facts and circumstances of the approximately 1.9 million U.S. person queries that are apparently the result of an FBI investigation into alleged Russian hackers who sought to compromise U.S. critical infrastructure.” What was the rationale, they asked, for so many U.S. person queries for this concern? Why were these searches found to be compliant with the FBI’s Section 702 procedures?
 
Reps. Jordan and Turner also asked why the FBI four times accessed the contents of Section 702 information without first obtaining an order from the Foreign Intelligence Surveillance Court (FISC). What was the basis for each query? What manner of content was accessed? When did the FBI discover each violation and report it to the FISC?
 
For years, Members of Congress have asked for the Federal Bureau of Investigation for answers to similar questions about FBI practices. For years, their questions have gone into the round file. Reps. Jordan and Turner reiterated these questions with renewed vigor. One of the most intriguing of their questions asks why agents must obtain attorney approval before conducting a batch of 100 or more queries, but not below that number. What was the frequency of the queries of FISA-approved data for 99 or fewer questions? This distinction suggests a major loophole in FBI practice.
 
As Director Wray ponders these questions, perhaps he may find that the prospect of incipient chairmanships concentrates the mind wonderfully.

Our bipartisan, public interest organization frequently files Freedom of Information Act (FOIA) requests to learn how the FBI, CIA and other intelligence and law enforcement agencies obtain warrantless access to Americans’ personal information, in defiance of the Fourth Amendment. It is, to say the least, a target-rich environment.

​Shira Ovide of The New York Times wrote a thoughtful and wide-ranging piece on the need for a broad national data privacy law – and the frustrations of parsing the technical, economic, social and legislative complexities in devising such a law.
 
For a national approach to data privacy to become law, Ovide reports, Congress would need to do more than overcome its customary state of gridlock. It would have a Gordian knot of issues to slice through. For example, Congress would either have to agree with industry’s position that any federal law should overrule state privacy laws, or override only new laws and respect existing ones, or respect state laws.
 
Ovide also notes the potential for regulation to generate pointless activity or even make things worse for consumers. She points to the experience with Europe’s General Data Protection Regulation, which annoys people around the world with pop-up notices about data-tracking cookies. Ovide adds: “The first of two of California’s digital privacy provisions in theory gives people control over how their data is used, but in practice often involves filling out onerous forms.”
 
Go too far in one direction, and data-privacy laws could break the business models of whole industries and burden consumers with pointless disclaimers and notices. Go too far in another direction, and the current status quo of what Ovide calls the “unrestrained information-harvesting economy” would be merely ratified in law.
 
Our view is that an effective data-privacy law will probably have to evolve as technology evolves, with blockchain beginning to alter the structure and privacy potential of the internet. In the meantime, there is ready-made legislation supported by bipartisan leaders in both houses of Congress that can effectively fill in a big and missing piece of the privacy puzzle now – The Fourth Amendment Is Not for Sale Act.

​The analysis in The Times concerns the potential for misuse of personal data by corporations and other private entities. How commercial entities treat data is a vital question, but it is not the only important one. Recent revelations show that many federal law enforcement and intelligence agencies are side-stepping the constitutional requirement for a probable cause warrant by buying up Americans’ personal data – gleaned from popular social media platforms and apps – from unregulated private data companies.
 
Thus, government money can give government agents instant access to our friends and contacts, the places we go, what we believe, and even our medical concerns. Commercial entities may abuse our privacy. But the Founders created the warrant requirement to restrain government because it has the power to misuse information to falsely arrest, prosecute and imprison us. Yet the government today believes it can outsmart the Founders by merely opening its wallet.
 
The Fourth Amendment Is Not for Sale Act would close this loophole in current law by preventing data brokers from selling our personal information to federal agencies without an authorization by a court. Whenever privacy is discussed, the misuse of personal information by public entities should be included.

​Earlier this year, we reported that the Central Intelligence Agency has been buying vast amounts of Americans’ personal information from private brokers who sell data in bulk. Then we learned that an agency within the Department of Homeland Security has been purchasing records of Americans’ financial transactions.
 
Now, thanks to a two-year, exhaustive study by the Center on Privacy and Technology at Georgetown Law, we now know that Immigration and Customs Enforcement (ICE) is the latest federal agency to buy up vast quantities of Americans’ personal data, in this instance from utilities and state motor vehicle departments.
 
“By reaching into the digital records of state and local governments and buying databases with billions of data points from private companies, ICE has created a surveillance infrastructure that enables it to pull detailed dossiers on nearly anyone, seemingly at any time,” write the authors of American Dragnet: Data Driven Deportation in the 21st Century.
 
After filing and studying hundreds of Freedom of Information Act requests, as well as ICE contracts and procurement tools, scholars at the Center for Privacy & Technology unearthed startling facts:

• ICE has used facial recognition technology to search through the driver’s license photographs of 1 in 3 adults in the United States.

 

• ICE has access to the driver’s license data of 3 in 4 American adults and tracks the movements of cars in cities home to nearly 3 in 4 adults.

 

• When adults in the United States connect to gas, electricity, phone or internet service in a new domicile, ICE will automatically pick up the new address of 3 out of 4 Americans.

 
Activists are upset that undocumented people are being conned into giving up personal information, despite state promises it won’t be used against them. Here’s how it works: Sixteen states and the District of Columbia allow undocumented people to apply for driver’s licenses, giving the undocumented reason to trust that their information will not be accessed. In many of these states, however, ICE gets the information anyway. In Oregon, for example, state lawmakers passed a law cutting off state data disclosures to ICE. But ICE still gets that data by buying it from Thomson Reuters and LexisNexis Risk Solutions.
 
Some might say, well and good – these are illegal aliens after all, so let ICE go after them. But the larger implications of recent disclosures should alarm every American. Consider that, between the purchases of Americans’ data by DHS and CIA, the Department of Defense spying into religious apps, and the recent revelation that the FBI has conducted 3.4 million warrantless searches, it is clear that the federal government is weaving together the infrastructure for the kind of total surveillance that exists in the People’s Republic of China.
 
One doesn’t have to believe that this is happening because the federal government is executing an evil plan. Each agency is just looking for the best, off-the-shelf technology to make it easier to fulfill its mission. But thread by thread, the infrastructure for a total surveillance state is coming together. And if we’ve learned anything from decades of experience with surveillance, if a capability exists – even if it contrary to the Constitution, the law, and the expectations of Americans – someone will misuse it.
 
All the more reason for Congress to hold hearings this year on the extent of federal purchases of Americans’ personal information – and pass the Fourth Amendment Is Not for Sale Act.