In 2024, champions of surveillance reform in the House passed the Fourth Amendment Is Not For Sale Act – which would force government agencies to obtain probable cause warrants before collecting Americans’ most sensitive and personal data scraped from apps and sold by data brokers.
 
House passage of this measure creates powerful momentum for this major surveillance reform, in the next Congress if not in this one.
 
Congress also imposed strong reporting and accountability measures on the FBI.
 
The Bureau must now report the number of times it searches, or “queries,” the communications of Americans in FISA Section 702 databases. This reform amendment also allows the leaders of both Houses of Congress and the House and Senate Judiciary and Intelligence Committees to attend hearings of the secret FISA Court – something Jim Jordan, Chairman of the Judiciary Committee, (R-OH) and Ranking Member Jerry Nadler, (D-NY), are publicly planning to do.
 
Congress did reauthorize Section 702, the foreign intelligence surveillance authority, without requiring warrants to examine queries of the communications of Americans caught up in this global data trawl. Even here, however, there were bright spots. The advocates of the intelligence community avoided a warrant requirement for surveillance of Americans by the narrowest margin – the breaking of a tie vote. And champions of reform succeeded in moving the next reauthorization of Section 702 from five years to two years.
 
As a result of this close vote and narrow window, debate is already well underway on ways to improve Section 702.
 
On the negative side, House Intelligence Committee leaders managed to insert into Section 702 reauthorization a measure we called “Make Everyone a Spy” – now law – that requires many businesses with internet-related communications equipment to allow warrantless inspection of customer data. At this writing, efforts are underway to narrow this provision.

Champions of Reform

Throughout this year, many Members stepped forward to take a strong, bold stance for surveillance reform. These include:

• House Judiciary Chairman Jim Jordan, (R-OH) and Ranking Member Jerry Nadler, (D-NY) for shepherding strong legislation through the House Judiciary Committee and for their forceful advocacy for privacy rights.

​

• Rep. Warren Davidson (R-OH), who headed the successful effort to pass the Fourth Amendment Is Not For Sale Act through the House.

 

• Rep. Chip Roy (R-TX), who succeeded in adding the regular reporting requirements on Section 702 inquiries by the FBI.

 

• Rep. Andy Biggs (R-AZ), who stood tall in the House for adding warrants to Section 702 queries and came within one vote of winning.  

​

• Rep. Ben Cline (R-VA), who succeeded in ending collection of surveillance of third-party mentions, or “abouts” information.

Other prominent and diligent House surveillance reformers include:
   

• Rep. Sara Jacobs, (D-CA)

 

• Rep. Tom Massie (R-KT)

 

• Rep. Darrell Issa, (R-CA)

• Rep. Zoe Lofgren, (D-CA)
  

​
In the Senate:

• Sen. Dick Durbin, (D-IL) Chairman of the Judiciary Committee, stood up for warrants for Americans’ private communications.

 

• In this effort Chairman Durbin had the strong, bipartisan support of Sen. Mike Lee (R-UT) and Sen. Ron Wyden (D-OR).

​

• Sen. Rand Paul (R-KY) was a strong advocate for the Senate passage of the Fourth Amendment Is Not For Sale Act.

​A new online surveillance danger to human rights, free expression, and liberty is emerging in the online world. This particular threat is not coming from Moscow or Beijing, but inexplicably from America’s own trade representative, Katherine Tai.
 
Until now, the open architecture of the internet has made it difficult for illiberal governments, ranging from Uganda to Venezuela, to access what is posted and shared by dissidents, members of vulnerable minorities, and disgruntled citizens. Dictators have many surveillance workarounds at their disposal, including increasingly robust spyware spreading around the globe like wildfire. But at least the open architecture of the internet makes it difficult for dictators and persecutors to confidently track or trace every text, email, and online search within their borders.
 
It is thus out of a commitment to democracy and human rights that U.S. administrations and trade representatives have long strived to defend U.S. tech companies from being required to turn over data to be stored on local servers, which would Balkanize the internet. The United States also rejected requests from regimes that would compel U.S. tech companies to turn over their proprietary source codes so foreign governments could access the algorithms of messaging apps and digital platforms, potentially giving hostile actors access to the guts of their operations.
 
Late last year, Trade Representative Tai withdrew support for these longstanding U.S. digital trade principles before the World Trade Organization, a vastly underreported story with consequences that are just now beginning to sink in. This will subject leading U.S. tech companies to strict regulation in virtually every market in the world. That’s an odd position for America’s trade representative – who is usually expected to safeguard the competitiveness of American companies. The consequences for privacy and human rights promise to be catastrophic.
 
The Center for Democracy & Technology penned a coalition letter in February that itemized these negative consequences of Tai’s about-face. People’s personal data, the letter states, “can reveal who they voted for, who they worship, and who they love.” Data localization would upend a globally interoperable internet, placing this personal data firmly within reach of governments, “creating unique risks for people’s privacy, free expression, access to information, and other fundamental freedoms.”
 
Restrictions of cross-border flows of information will restrict the ability of people to access information from around the world. And the forced disclosure of products’ source code has the potential to undermine privacy and security here in the United States.  
 
Why is Tai doing this? Her actions appear to be the result of lobbying from Federal Trade Commission Chair Lina Khan and DOJ Antitrust Chief Jonathan Kanter, who are actively encouraging global antitrust actions against large U.S. tech companies. Even if you are critical of Google, Apple, Amazon, and Meta, inviting Myanmar and Uzbekistan to regulate U.S. industries is astonishing, to say the least.
 
Clearly, this proposal wasn’t widely vetted. Nathaniel Fick, the State Department’s Ambassador for Cyberspace and Digital Policy, testified in a hearing late last year that he learned of this sea change in U.S. policy from press reports. There are signs that Tai’s surprise kicked off a fierce debate within the administration.
 
To be fair, the internet is far from perfectly open as it is. Some countries like India already require a degree of data localization. The Biden Administration’s effort to protect Americans’ personal data from hostile “countries of concern” like Russia and China will be portrayed by some as a step toward Balkanization. But Tai’s policy reversal kicks this trend into overdrive. It will enable foreign governments to surveil democracy activists and dissidents around the world, while heightening threats to Americans at home.
 
This is a monumental shift in American policy. It must be more widely discussed, debated, and investigated by journalists and Members of Congress.

​Last year, we reported on “mail covers” – the practice of the U.S. Postal Service producing for other government agencies images of the exterior portions of envelopes to track communications between Americans. Now an exclusive in The Washington Post puts some meat on those bones.
 
Since 2015, postal inspectors have approved over 60,000 requests from federal agents and police officers to monitor snail mail. The Post Office approves these surveillance requests, issued without a court order, 97 percent of the time.
 
Most of the requests come from the FBI, the IRS, and the Department of Homeland Security. Things could be worse: at one time, the Church Committee investigations of the 1970s found that the CIA had photographed the exterior portions of 2 million letters, and opened hundreds of thousands of them. In the early days of the Republic, Thomas Jefferson had so little trust in the post office that he devised an encryption scheme, which was used to share early drafts of the Bill of Rights with James Madison.
 
The government stoutly defends this program today as legal. An 1879 U.S. Supreme Court ruling held that a warrant is needed to open an envelope, leaving open the inference that what is written on the surface of an envelope itself is fair game.

This ongoing practice underscores a critical gap in privacy protections, where even the exteriors of our letters and packages can reveal much about our personal lives. Eight senators wrote the inspector general of the postal service last year objecting to this practice. “While mail covers do not reveal the contents of correspondence, they can reveal deeply personal information about Americans’ political leanings, religious beliefs, or causes they support,” the senators wrote.
​
Senators ranging from Ron Wyden (D-OR) to Rand Paul (R-KY) are pushing for judicial oversight for these operations, aligning mail surveillance with the safeguards already required for monitoring digital communications. PPSA will track and report on their progress.

​“Curtilage” is a legal word that means the enclosed area around a home in which the occupant has an expectation of privacy. Within the zone of curtilage, the Fourth Amendment implications usually force law enforcement officers to obtain a warrant before they can enter. Where curtilage begins and ends has long been a matter of fine, Jesuitic distinctions, hotly contested in courts across the country.
 
Sometimes the boundaries are obvious. In a landmark case, the U.S. Supreme Court in 2021 held in Lange v. California that a police officer who followed a driver into his garage entered his curtilage. The officer had no right to do so without a warrant. PPSA was pleased to see the Court adopt logic similar to our amicus brief in Lange.
 
So much for garages. Now what about doorknobs?
 
Terrell McNeal Jr. of Mankato, Minnesota, was arrested after police obtained a probable cause warrant to enter his apartment and found controlled substances, cash, and guns. The evidence behind the warrant was derived from his doorknob. A police officer had earlier obtained a code from the apartment’s landlord to enter the structure’s interior communal space. He had proceeded to swab the doorknob of McNeal’s front door. It tested positive for two controlled substances. That was the basis of the warrant.
 
The doorknob was tainted, to be sure. But that left a nagging legal question: Was the search warrant itself tainted by a violation of McNeal’s curtilage?
 
A district court did not think so. It bought the prosecution’s argument that the door handle and lock were outside of McNeal’s home. A county prosecutor made this point on appeal: “If the court looks at the door itself, it prevents people from looking into the home. That doesn’t make the outside of the door curtilage.”
 
Actually, it does, ruled the Minnesota Court of Appeals. On June 10, the appellate court found that officers have “no implied license to remove material from the door handle and lock for laboratory testing.”
 
The court did distinguish this case from one in which a search warrant was obtained after a drug-sniffing dog found the aromatic traces of narcotics in the air in front of an apartment. But the officers in the McNeil case, the court ruled, “went a step further and collected a sample from a door handle and lock that were physically attached to and indivisible from appellant’s home.”
 
The Minnesota Court of Appeals made the correct decision, voiding the conviction. As for McNeal, the authorities kept him in prison since his arrest more than two years ago, until the appellate court ruled in his favor. But at least the court recognized that swabbing any part of a home without a warrant is a violation of the Fourth Amendment.

​The Privacy and Civil Liberties Oversight Board (PCLOB), an independent agency since 2007, is a watchdog tasked with ensuring that federal counterterrorism programs have adequate safeguards for privacy and civil liberties.
 
It was only a few years ago that PCLOB was criticized for appearing more like a lapdog than a watchdog. After taking six years to study Executive Order 12333, which authorizes limited forms of surveillance outside of any statutory authority, PCLOB produced a public paper in 2021 that read like a high school book report. But under Sharon Bradford Franklin, Chair since February 2022, PCLOB has been a source of active inquiry and pinpoint distinctions that inform and enrich public debate on government surveillance.
 
“Chair Bradford Franklin’s service is marked by balance,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and Senior Policy Advisor for PPSA. “She has been a strong advocate for transparency in intelligence operations while respecting the need to enable classified programs that protect our homeland.”
 
It was under Bradford Franklin’s leadership that the PCLOB Board reviewed the government's implementation of Presidential Policy Directive No. 28 (PPD-28), providing critical insights into how the intelligence community collects foreign intelligence. Her reports have been used by agencies as active guides on how to be both effective and compliant with the law.
 
With the expiration of Bradford Franklin’s term as Chair, both the civil liberties community and the intelligence community should want her to be re-nominated. Her absence could disrupt critical reviews and oversight functions important to the United States and our European allies, including the review of privacy and civil liberties safeguards under Executive Order 14086 and the EU-US Data Privacy Framework. Some of our colleagues warn that the European Commission particularly values PCLOB’s oversight, and the absence of a Chair could jeopardize trans-Atlantic data flows.
 
This one’s a no-brainer: The re-nomination of Sharon Bradford Franklin would ensure that PCLOB remains an independent watchdog that strengthens both civil liberties and national security.

​State financial officials in 23 states have fired off a letter to House Speaker Mike Johnson expressing strong opposition to a new Security and Exchange Commission program that grants 3,000 government employees real-time access to every equity, option trade, and quote from every account of every broker by every investor.
 
“Traditionally, Americans’ financial holdings are kept between them and their broker, not them, their broker, and a massive government database,” the state auditors and treasurers wrote. “The only exception has been legal investigations with a warrant."
 
The state financial officers contend that the SEC's move undermines the principles of federalism by imposing a one-size-fits-all solution without considering the unique regulatory environments of individual states. They asked Speaker Johnson to support a bill sponsored by Rep. Barry Loudermilk (R-GA), the Protecting Investors' Personally Identifiable Information Act. This proposed legislation would restrict the SEC's ability to collect and centralize such vast amounts of personal financial data.
 
As is so common with recent efforts at financial surveillance, the SEC justifies this data collection to combat insider trading, market manipulation, and to identify suspicious activities. Similar excuses are offered for the new “beneficial ownership” requirement that is forcing millions of Americans who own small businesses to send the ownership details of their businesses to the Financial Crimes Enforcement Network (FinCEN) of the U.S. Treasury. But such increased vigilance comes at the expense of the privacy of millions of Americans. The sheer volume of data accessible to government employees raises concerns about potential misuse and unauthorized access.
 
“The Securities and Exchange Commission has been barreling forward with a new system – the Consolidated Audit Trail (CAT) – which tracks every trade an individual investor makes and links it to their identity through a centralized system,” Rep. Loudermilk said. “Not only is collecting all this information unnecessary, regulators already have similar systems that don’t easily match identities with transactions, but it also creates another security vulnerability and a target for hackers.” 
 
While the SEC assures lawmakers that strict safeguards are in place – given recent high-profile hacks and deliberate leaking of confidential taxpayer information by an IRS consultant – the possibility of data breaches or political abuse is very real. American history offers many examples of financial information being abused for personal or ideological retribution, from the days of Richard Nixon to those of Lois Lerner during the Obama years.
 
All the more reason for Speaker Johnson to give Rep. Loudermilk’s bill a big push on the House floor.

“Why are House Intelligence Committee Republicans so happy to carry water for the Biden Administration?” This was a question put to us by an incredulous Republican politician. He added: “Why is it that Democrats in the Senate are doing a better job of protecting privacy from the administration and the intelligence community than House Republicans?”
 
Here is what he was getting at: in April, the House Permanent Select Committee on Intelligence slipped into the reauthorization of Section 702 a measure that would allow the government to potentially enlist almost every kind of business to warrantlessly spy on any American’s communications contained in any kind of electronic communications equipment. Now law, this measure could force ordinary businesses – from gyms to dentists’ offices, to commercial landlords with tenants that could include political campaigns or journalists – to turn over their customers’ communications that run on ordinary systems, such as WiFi.
 
For obvious reasons, this came to be known as the new “Make Everyone a Spy” law.
 
In April, when the Senate prepared to reauthorize FISA Section 702, which authorizes surveillance of foreign targets located abroad, Sen. Mark Warner (D-VA) won the votes of his colleagues by frankly admitting that the House language “could have been drafted better.” He promised that the Senate Intelligence Committee would fix it with a narrower definition of covered “electronic communications service providers.”
 
“The idea that you draw it so broad, and then try to exclude things, well, you’re never going to be able to figure out all the possible exceptions,” Warner said in an interview.
 
True to his word, Sen. Warner led his committee to include language in the Intelligence Authorization Act that narrows the definition of a covered electronic communications service provider. The actual language of the amendment, based on an opinion by the secret FISA Court, is classified. But the Warner fix is widely believed by the media to narrow this law to cover cloud computing centers, which did not exist when the governing law, the Electronic Communications Privacy Act, was enacted in 1986 and amended more than 15 years ago. (Under current law, communication companies, like Google and Verizon, are already required to cooperate with the government on data searches for foreign threats.)
 
That fix, however, fails to impress Rep. Mike Turner (R-Ohio) and other leading Members of the House Intelligence Committee. They are avoiding Sen. Warner’s legislation and seem determined to perpetuate the expansive definition of “Make Everyone a Spy” in the House version of the Intelligence Authorization Act.
 
House insiders tell us that it is now up to Speaker Johnson and reform-minded Republicans to ensure that the Warner fix is made in the House legislation. Absent that, civil liberties champions will have to cross our fingers and hope that the fix will be made in a House-Senate conference committee.
​

​The doxing of donors is a danger to our democracy.
 
When donors give to a controversial cause, they count on anonymity to protect them from public backlash. This is a principle enshrined in law since 1958, when the U.S. Supreme Court protected donors to the NAACP from forcible disclosure by the State of Alabama.
 
Undeterred by this precedent, California tried to enforce a measure to capture the identities of donors and hold them in the office of that state’s attorney general, despite the fact that the California AG’s office has a history of leaks and data breaches. Surprisingly, the federal Ninth Circuit upheld that plan.
 
The Project for Privacy and Surveillance Accountability filed a brief before the U.S. Supreme Court arguing that this policy is dangerous, not just to the robust practice of democracy, but to human lives. Citizens have lost their jobs, had their businesses threatened, and even been targeted for physical violence, all because they donated to a political or cultural cause. In 2021, the Supreme Court agreed with PPSA, reversing a Ninth Circuit opinion in Americans for Prosperity v. Bonta.
 
Still, the drive to expose donors – whether progressives going after gun rights organizations or conservatives going after protest organizations – remains a hot-button issue in state politics across the country. Politicians and groups are eager to know: Is George Soros or the Koch Foundation or name-your-favorite-nemesis giving money to a cause you oppose? Thanks to the work of the People United For Privacy (PUFP) foundation, that push to expose is now stopped cold in 20 states.
 
With help from PUFP, bipartisan coalitions in 20 states have adopted the Personal Privacy Protection Act (PPPA) to provide a shield for donor privacy by protecting their anonymity. This movement is spreading across the country, with Alabama, Colorado, and Nebraska having passed some version of this law just this year.
 
“Every American has the right to support causes they believe in without fear of harassment or abuse of their personal information,” says Heather Lauer, who heads People United for Privacy. “The PPPA is a commonsense measure embraced by lawmakers in both parties across the ideological spectrum.”
 
Supporters have ranged from state chapters of the ACLU, NAACP, and Planned Parenthood to pro-life groups, gun rights groups, and free market think tanks. Thanks to this campaign, 40 percent of states now protect donors. For the remaining 60 percent, the power of the internet can expose donors’ home addresses, places of work, family members, and other private information to harassers. The need to enact this law in the remaining 30 states is urgent.
 
Still, securing donor protection in 20 states is a remarkable record given that People United for Privacy was only founded in 2018. We look forward to supporting their efforts and seeing more wins for privacy in the next few years.

​As the adoption of Automated License Plate Readers (ALPRs) creates ubiquitous surveillance of roads and highways, the uses and abuses of these systems – which capture and store license plate data – received fresh scrutiny by a Virginia court willing to question Supreme Court precedent.
 
In Norfolk, 172 such cameras were installed in 2023, generating data on just about every citizen’s movements available to Norfolk police and shared with law enforcement in neighboring jurisdictions. Enter Jayvon Antonio Bell, facing charges of robbery with a firearm. In addition to alleged incriminating statements, the key evidence against Bell includes photographs of his vehicle captured by Norfolk’s Flock ALPR system. Bell’s lawyers argued that the use of ALPR technology without a warrant violated Bell’s Fourth and Fourteenth Amendment rights, as well as several provisions of the Virginia Constitution.
 
The Norfolk Circuit Court, in a landmark decision, granted Bell's motion to suppress the evidence obtained from the license plate reader. This ruling, rooted in constitutional protections, weighs in on the side of privacy in the national debate over data from roadway surveillance. The court was persuaded that constant surveillance and data retention by ALPRs creates, in the words of Bell’s defense attorneys, a “dragnet over the entire city.”
 
This motion to dismiss evidence has the potential to reframe Fourth Amendment jurisprudence.
 
The Norfolk court considered the implications of the Supreme Court opinion Katz v. United States (1967), which established that what a person knowingly exposes to the public is not protected by the Fourth Amendment. In its decision, the court boldly noted that technological advancements since Katz have expanded law enforcement's capabilities, making it necessary to re-evaluate consequences for Fourth Amendment protections.
 
The court also referenced a Massachusetts case in which limited ALPR use was deemed not to violate the Fourth Amendment. The Norfolk Circuit Court’s approach was again pioneering. The court found that the extensive network of the 172 ALPR cameras in Norfolk, which far exceeded the limited surveillance in the Massachusetts case, posed unavoidable Fourth Amendment concerns.
 
The Norfolk court also expressed concern about the lack of training requirements for officers accessing the system, and the ease with which neighboring jurisdictions could share data. Additionally, the court highlighted vulnerabilities in ALPR technology, citing research showing that these systems are susceptible to error and hacking.
 
This is a bold decision by this state court, one that underscores the need for careful oversight and regulation of ALPR systems. As surveillance technology continues to evolve, this court’s decision to suppress evidence from a license plate reader is a sign that at least some judges are ready to draw a line around constitutional protections in the face of technological encroachment.

​We recently reported on the proliferation of automated license plate readers (ALPRs) in Virginia. Now a lawsuit from two Cook County, Illinois, residents make a Fourth Amendment claim against the growing system of ALPRs. It directly sets out the dangers such systems pose to privacy and constitutional rights.
 
The suit by plaintiffs Stephanie Scholl and Frank Bednarz against the Illinois State Police highlights the proliferation of license plate readers to the point of near ubiquity – 300 ALPRs across every expressway in Cook County. Calling this “a system of dragnet surveillance,” the plaintiffs write that law enforcement is “tracking anyone who drives to work in Cook County – or to school, or a grocery store, or a doctor’s office, or a pharmacy, or a political rally, or a romantic encounter, or family gathering – every day, without any reason to suspect anyone of anything, and are holding onto those whereabouts just in case they decide in the future that some citizen might be an appropriate target of law enforcement.”
 
As with so many surveillance systems, danger to privacy lies not just in the mere collection of data, but how long it is stored and when and how it is used.
 
The plaintiffs write that when “law enforcement chooses to investigate a citizen’s past movements, the ALPRs feed databases creating a comprehensive map of their travels, recording every time they’ve driven past ISP’s cameras – and indeed every time they’ve driven past cameras in other jurisdictions using the same database.”
 
The vendor for these devices, Vetted Security Solutions, which uses Motorola’s “Vigilant” system, feeds every detected license plate into Vigilant’s Law Enforcement Archival Reporting Network (LEARN) national database, which holds millions of license plate images that allow millions of Americans to be tracked.
 
The good news is that the Illinois State Police only holds its license plate data for 90 days after it is collected. But this agency is not required by law or by Vigilant policy to do so. Every law enforcement customer is allowed to set their own retention limits – or none at all. The result is potentially years’ worth of data held by law enforcement agencies that track the movements of Americans around the country. Add to this all the data that our cars and GPS systems produce, in addition to all the commercial information that is purchased by federal and local agencies, and we begin to get a sense of the scale of warrantless surveillance of Americans.
 
We should be grateful to Scholl and Bednarz for laying out in plain English the danger license plate readers can pose to Americans. This technology is one more tile being set into an enormous mosaic of capabilities, an emerging American panopticon. It is also one more reason to spark a national discussion on what data the government should collect, and the need for warrants to track Americans. Someone has to watch the watchers, and we can all do our part not to let the government gather such dangerous surveillance powers unnoticed and unchallenged.

​George Orwell wrote that in a time of deceit, telling the truth is a revolutionary act.
 
Revolutionary acts of truth-telling are becoming progressively more dangerous around the world. This is especially true as autocratic countries and weak democracies purchase AI software from China to weave together surveillance technology to comprehensively track individuals, following them as they meet acquaintances and share information. A piece by Abi Olvera posted by the Bulletin of Atomic Scientists describes this growing use of AI to surveil populations.
 
Olvera reports that by 2019, 56 out of 176 countries were already using artificial intelligence to weave together surveillance data streams. These systems are increasingly being used to analyze the actions of crowds, track individuals across camera views, and pierce the use of masks or scramblers intended to disguise faces. The only impediment to effective use of this technology is the frequent Brazil-like incompetence of domestic intelligence agencies.
 
Olvera writes:
 
“Among other things, frail non-democratic governments can use AI-enabled monitoring to detect and track individuals and deter civil disobedience before it begins, thereby bolstering their authority. These systems offer cash-strapped autocracies and weak democracies the deterrent power of a police or military patrol without needing to pay for, or manage, a patrol force …”
 
Olvera quotes AI surveillance expert Martin Beraja that AI can enable autocracies to “end up looking less violent because they have better technology for chilling unrest before it happens.”
 
Olivia Solon of Bloomberg reports on the uses of biometric identifiers in Africa, which are regarded by the United Nations and World Bank as a quick and easy way to establish identities where licenses, passports, and other ID cards are hard to come by. But in Uganda, Solon reports, President Yoweri Museveni – in power for 40 years – is using this system to track his critics and political opponents of his rule. Used to catch criminals, biometrics is also being used to criminalize Ugandan dissidents and rival politicians for “misuse of social media” and sharing “malicious information.”
 
The United States needs to lead by example. As our facial recognition and other systems grow in ubiquity, Congress and the states need to demonstrate our ability to impose limits on public surveillance, and legal guardrails for the uses of the sensitive information they generate.

​Every moral person agrees we must fight the sexual abuse of children online. But a renewed push by the Belgian Presidency within the European Union’s executive branch would force all consumers to accept software that would annihilate any semblance of communications privacy. This would be done with government technology that would break end-to-end encryption. (Hat tip to Joe Mullin of EFF.)
 
In the name of catching those who traffic in Child Sexual Abuse Materials (CSAM), the EU is poised to degrade the ability of anyone to privately communicate. Worse, it could enable illicit and dangerous surveillance by bad actors.
 
The EU had previously proposed scanning the full content of encrypted messages. In what is being sold as a new approach, the executive branch is now offering a tweaked but still problematic approach called “upload moderation.” This proposal would mandate the scanning of hyperlinks and images within encrypted messages. In theory, consumers could refuse to consent to this snooping, but they would be blocked from sharing any further photos or videos. Such coerced consent is, of course, no consent at all.
 
What is lost in this debate is that encryption is a major protector of personal security, human rights, and liberty. In an open letter to the EU, leading civil liberties organizations – including the Center for Democracy & Technology, Mozilla, and the Electronic Frontier Foundation – warn policymakers that such technology would be dangerous “bugs in our pockets.” Such “client-side scanning” pushes surveillance beyond what is shared on the cloud directly to the user’s device.
 
Some trolls already threaten journalists by sending them unwanted CSAM. Dictatorships could use Europe’s system to send innocuous images to dissidents that contain the correct parameters to trigger a CSAM alarm – and then use the results of that alarm to locate that person. Cartels and other criminal gangs could use it to locate witnesses.
 
Experts demonstrate that malevolent agents can manipulate the hash database of such a system to transform it into a risk for physically locating and surveilling individuals. Victims around the world could ironically include women and children hiding in safe houses from abusers and stalkers.
 
CSAM users are despicable criminals who deserve to be ferreted out and punished. But creating a system that eradicates all privacy in electronic communications is not the solution.

​For the second time, PPSA has been forced to go to court to oppose the delaying tactics of the National Security Agency, the CIA, the FBI, and the Office of the Director of National Intelligence in complying with its obligations under Freedom of Information Act (FOIA).
 
PPSA’s FOIA request, now years old, asks these agencies to produce documents concerning their acquisition and use of commercially available information regarding 145 current and former Members of Congress. These Members have served on committees with oversight responsibilities of the intelligence community.
 
Earlier this year, federal Judge Rudolph Contreras rejected the agencies’ insistence that the Glomar doctrine – which allows agencies to neither confirm nor deny the existence of certain records – relieves them of their statutory obligations to search for responsive records. Judge Contreras had narrowed PPSA’s request to exclude operational documents, ordering agencies to search for only policy documents. He cited agencies correspondence with Members of Congress as an example of a policy document. Judge Contreras wrote, “it is difficult to see how a document such as this would reveal sensitive information about Defendants’ intelligence activities, sources or methods.”
 
Yet the intelligence community is defying its legal obligations for a second time. The agencies’ new strategy rests on a nonsensical linkage to an entirely different PPSA case, currently before the D.C. Circuit, that happens to also use the term “policy documents.”
 
By conflating separate cases, the agencies suggest that they meant to challenge Judge Contreras’ order to search only for “policy documents.” But the agencies have not done so, and this is clearly just the latest delay tactic used to ignore FOIA’s clear search requirement, which Judge Contreras reinforced earlier this year. 
 
As a result of this new attempt at delay and obfuscation, agencies are now asking the Court to significantly expand Defendants’ delays by staying this case into 2025. PPSA is hopeful that these agencies will eventually comply with a direct and unambiguous order from a federal judge.

​In the early 1920s revenue agents staked out a South Carolina home the agents suspected was being used as a distribution center for moonshine whiskey. The revenue agents were in luck. They saw a visitor arrive to receive a bottle from someone inside the house. The agents moved in. The son of the home’s owner, a man named Hester, realized that he was about to be arrested and sprinted with the bottle to a nearby car, picked up a gallon jug, and ran into an open field.
 
One of the agents fired a shot into the air, prompting Hester to toss the jug, which shattered. Hester then threw the bottle in the open field. Officers found a large fragment of the broken jug and the discarded bottle both contained moonshine whiskey. This was solid proof that moonshine was being sold. But was it admissible as evidence? After all, the revenue agents did not have a warrant.
 
This case eventually wound its way to the Supreme Court. In 1924, a unanimous Court, presided over by Chief Justice (and former U.S. President) William Howard Taft, held that the Fourth Amendment did not apply to this evidence. Justice Oliver Wendell Holmes, writing the Court’s opinion, declared that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects,’ is not extended to the open field.” This principle was later extended to exclude any garbage that a person throws away from Fourth Amendment protections.
 
As strange as it may seem, this case about broken jugs and moonshine from the 1920s, Hester v. United States, provides the principle by which law enforcement officers freely help themselves to the information inside a discarded or lost cellphone – text messages, emails, bank records, phone calls, and images.
 
We reported a case in 2022 in which a Virginia man was convicted of crimes based on police inspection of a cellphone he had left behind in a restaurant. That man’s attorney, Brandon Boxler, told the Daily Press of Newport News that “cellphones are different. They have massive storage capabilities. A search of a cellphone involves a much deeper invasion of privacy. The depth and breadth of personal and private information they contain was unimaginable in 1924.”
 
In Riley v. California, the Supreme Court in 2018 upheld that a warrant was required to inspect the contents of a suspect’s cellphone. But the Hester rule still applies to discarded and lost phones. They are still subject to what Justice Holmes called the rules of the open field.
 
The American Civil Liberties Union, ACLU Oregon, the Electronic Privacy Information Center, and other civil liberties organizations are challenging this doctrine before the Ninth Circuit in Hunt v. United States. They told the court that it should not use the same reasoning that has historically applied to garbage left out for collection and items discarded in a hotel wastepaper basket.
 
“Our cell phones provide access to information comparable in quantity and breadth to what police might glean from a thorough search of a house,” ACLU said in a posted statement. “Unlike a house, though, a cell phone is relatively easy to lose. You carry it with you almost all the time. It can fall between seat cushions or slip out of a loose pocket. You might leave it at the check-out desk after making a purchase or forget it on the bus as you hasten to make your stop … It would be absurd to suggest that a person intends to open up their house for unrestrained searches by police whenever they drop their house key.”
 
Yet that is the government position on lost and discarded cellphones. PPSA applauds and supports the ACLU and its partners for taking a strong stand on cellphone privacy. The logic of extending special protections to cellphones, which the Supreme Court has held contain the “privacies of life,” is obvious. It is the government’s position that tastes like something cooked up in a still.

​If you write legislation but refuse to tell the public what is in it, can it still be considered a law if enacted? Can public laws be redacted, with big black heavy marks through their central provisions?
 
The Senate Intelligence Committee thinks so.
 
These questions arise from a development that forces civil libertarians to look a gift horse in the mouth. Here’s the background: When Congress passed the reauthorization of Section 702 in April, it included an amendment from the House Intelligence Committee that would force “any provider” of a business service to warrantlessly hand over customer information from any electronic device that transmits data, such as routers or free WiFi. Any businessperson could be dragooned into this service and gagged for life to never reveal it.
 
The public outcry about turning your neighborhood Starbucks into a spying operation prompted legislators to exclude coffee shops, hotels, and community centers. But the amendment, adopted by the Senate, was still expansive enough to define gyms, office complexes, dentists, you name it, as “electronic service providers” covered by this law. Many civil libertarians worried that custodial services would be required to swipe data from servers at night. That may sound paranoid, but the law was expansive enough to allow that – and we’ve seen time and again, give the intelligence community an inch and they will take a continent. That’s why this law was quickly labeled the “Make Everyone a Spy” program.
 
Senate Intelligence Chairman Mark Warner won passage of this amendment only by pledging to his colleagues that his committee would narrow the scope of this provision to one intended sector that was the subject of secret opinions from the Foreign Intelligence Surveillance Court. Sen. Warner deserves great credit for keeping his word and acting on it with alacrity. It is widely believed on Capitol Hill that the legislation is aimed at data centers, not everyday businesses. But we cannot be sure because the new amendment’s new, narrowed definition of a category of covered electronic service provider is classified.
 
So, the good news: The Make Everyone a Spy law is being narrowed to a single category. The bad news: We don’t know what that means.
 
Such secret law is a dangerous practice that will lead to pernicious outcomes. If unchallenged, this precedent will be used by the champions of the intelligence community on Capitol Hill to insert a host of secret provisions. Combine secret law with secret opinions from the secret FISA court, and voilà, you have a complete Star Chamber legal system adjacent to the public one.
 
If this still seems hyperbolic, imagine what it would be like to be on the receiving end of a government request to produce customer information, without being presented with a warrant. Your lawyer can ask: Are we a covered entity within the government’s definition? Or is the government overreaching? There would be no answers to these questions because secret law short circuits due process.
 
If this provision is aimed at data centers, as surely the Russians, Chinese, Iranians, and North Koreans know from reading American media, why not reveal that fact? The best outcome would be for the Senate to strip out the secrecy and let us know who is and who is not covered by this law.

​When President Biden signed the “Reforming Intelligence and Securing America Act,” he couldn’t help but sign into law a measure that enhances oversight of the intelligence community.
 
An amendment to that bill, sponsored by Texas Republican Rep. Chip Roy, tasks the FBI with enhanced reporting requirements of its use of Americans’ communications caught up in FISA Section 702. Rep. Roy’s addition to the law also stipulates that the chairs and ranking Members of the House and Senate Judiciary Committees, as well as the leaders of the House and Senate, are able to attend the hearings of FISA’s secret courts – the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review.
 
It is in these secret chambers that the FBI petitions for approval to secretly surveil Americans suspected of being national security threats. It is before the FISC that the FBI won approval four times to spy on Trump campaign aide Carter Page as a possible Russian agent, misleading the court about the validity of its evidence and submitting a forged document.
 
Now Jim Jordan, Chairman of the House Judiciary Committee, and Jerry Nadler, former Chairman and Ranking Member of that same committee, have fired off a letter to Avril Haines, Director of National Intelligence, giving her until close of business on June 11 to brief their offices on procedures for attending the proceedings of these two courts.
 
Rep. Roy, who offered this measure as an amendment and helped it become law, tweets that “committees are more empowered to keep tabs on how the federal gov is conducting surveillance. This is a tremendous step forward for Americans’ 4th Amendment rights!”
 
He’s right. The leaders of the primary House oversight committee of the intelligence community are knocking on the doors of the secret courts to hear for themselves how Americans’ rights are handled in these secret hearings.
 
Oversight doesn’t get more direct than that.

​We recently reported that the Michigan Supreme Court punted on the Fourth Amendment implications in a case involving local government’s warrantless surveillance of a couple’s property with drone cameras. This was a disappointing outcome, one in which we had filed an amicus brief on behalf of the couple.
 
But other states are taking a harder look at privacy and aerial surveillance. In another recent case, the Alaska Supreme Court in State v. McKelvey upheld an appeals court ruling that the police needed to obtain a warrant before using an aircraft with officers armed with telephoto lenses to see if a man was cultivating marijuana in his backyard at his home near Fairbanks.
 
In a well-reasoned opinion, Alaska’s top court found that this practice was “corrosive to Alaskans’ sense of security.”
 
The state government had argued that the observations did not violate any reasonable expectation of privacy because they were made with commercially available, commonly used equipment. “This point is not persuasive,” the Alaska justices responded. “The commercial availability of a piece of technology is not an appropriate measure of whether the technology’s use by the government to surveil violates a reasonable expectation of privacy.”
 
The court’s reasoning is profound and of national significance:
 
“If it is not a search when the police make observations using technology that is commercially available, then the constitutional protection against unreasonable searches will shrink as technology advances … As the Seventh Circuit recently observed, that approach creates a ‘precarious circularity.’ Adoption of new technologies means ‘society’s expectations of privacy will change as citizens increasingly rely on and expect these new technologies.’”
 
That is as succinct a description of the current state of privacy as any we’ve heard. The court found that “few of us anticipated, when we began shopping for things online, that we would receive advertisements for car seats and burp cloths before telling anyone there was a baby on the way.” We would add that virtually no one in the early era of social media anticipated that federal agencies would use it to purchase our most intimate and sensitive information from data brokers without warrants.
 
The Alaska Supreme Court sees the danger of technology expansion with drones, which it held is corrosive to Alaskans’ sense of privacy. As we warned, drones are becoming ever cheaper, sold with combined sensor packages that can be not only deeply intrusive across a property, but actually able to penetrate into the interior of a home.


The Alaska opinion is an eloquent warning that when it comes to the loss of privacy, we’ve become the proverbial frog, allowing ourselves to become comfortable with being boiled by degrees. This opinion deserves to be nationally recognized as a bold declaration against the trend of ever-more expanding technology and ever-more shrinking zones of privacy.

​Katie King in the Virginian-Pilot reports an in-depth account about the growing dependency of local law enforcement agencies on Flock Safety cameras, mounted on roads and intersections to catch drivers suspected of crimes. With more than 5,000 police agencies across the nation using these devices, the privacy implications are enormous.
 
Surveillance cameras have been in the news at lot lately, often in a positive light. Local news is consumed by murder suspects and porch pirates alike captured on video. The recently released video of a physical attack by rapper Sean “Diddy” Combs on a girlfriend several years ago has saturated media, reminding us that surveillance can protect the vulnerable. The crime-solving potential of license plate readers is huge. Flock’s software runs license plate numbers through law enforcement databases, allowing police to quickly track a stolen car, locate suspects fleeing a crime, or find a missing person. With such technologies, Silver and Amber alerts might one day become obsolete.
 
As with facial recognition technology, however, license plate readers can produce false positives, ensnaring innocent people in the criminal justice system. King recounts the ordeal of an Ohio man who was arrested by police with drawn guns and a snarling dog. Flock’s license plate reader had falsely flagged his vehicle as having stolen tags. The good news is that Flock insists it is not even considering combining its network with facial recognition technology – reducing the possibility of both technologies flagging someone as dangerous.
 
As with so many surveillance technologies, the greater issue in license-plate readers is not the technology itself, but how it might be used in a network.
 
“There’s a simple principle that we’ve always had in this country, which is that the government doesn’t get to watch everybody all the time just in case somebody commits a crime – the United States is not China,” Jay Stanley, a senior analyst with the American Civil Liberties Union, told King. “But these cameras are being deployed with such density that it’s like GPS-tracking everyone.”
 
License plate readers could, conceivably, be networked to track everywhere that everyone goes – from trips to mental health clinics, to gun stores, to houses of worship, and protests.
 
With so many federal agencies already purchasing Americans’ sensitive data from data brokers, creating a national network of drivers’ whereabouts is just one more addition to what is already becoming a national surveillance system. With apologies to Jay Stanley, we are in serious danger of becoming China. As massive databases compile facial recognition, location data, and now driving routes, we need more than ever to head off the combination of all these measures. A good place to start would be for the U.S. Senate follow the example of the House by passing the Fourth Amendment Is Not For Sale Act.

​The City of Denver is reversing its previous stance against the use of police drones. The city is now buying drones to explore the effectiveness of replacing many police calls with remote aerial responses. A Denver police spokesman said that on many calls the police department will send drones first, officers second. When operators of drones see that a call was a false alarm, or that a traffic issue has been resolved, the police department will be free to devote scarce resources to more urgent priorities.
 
Nearby Arapahoe County already has a fleet of 20 such drones operated by 14 pilots. Arapahoe has successfully used drones to follow suspects fleeing a crime, provide live-streamed video and mapping of a tense situation before law enforcement arrives, and to look for missing people. In Loveland, Colorado, a drone was used to deliver a defibrillator to a patient before paramedics were able to get to the scene.
 
The use of drones by local law enforcement as supplements to patrol officers is likely to grow. And why not? It makes sense for a drone to scout out a traffic accident or a crime scene for police. But as law enforcement builds more robust fleets of drones, they could be used not just to assess the seriousness of a 911 call, but to provide the basis for around-the-clock surveillance.
 
Modern drones can deliver intimate surveillance that is more invasive than traditional searches. They can be packed with cell-simulator devices to extract location and other data from cellphones in a given area. They can loiter over a home or peek in someone’s window. They can see in the dark. They can track people and their activities through walls by their heat signatures. Two or more cameras combined can work in stereo to create 3D maps inside homes. Sensor fusion between high definition, fully maneuverable cameras can put all these together to essentially give police an inside look at a target’s life.
 
Drones with such high-tech surveillance packages can be had on the market for around $6,000. As with so many other forms of surveillance, the modest use of this technology sounds sensible, until one considers how many other ways they can be used. Local leaders at the very least need to enact policies that put guardrails on these practices before we learn, the hard way, how drones and the data they generate can be misused.

​A report by The New York Time’s Vivian Wang in Beijing and one by Tech Policy’s Marwa Sayed in New York describes the twin strategies for surveilling a nation’s population, in the United States as well as in China.
 
Wang chronicles the move by China’s dictator, Xi Jinping, to round out the pervasive social media and facial recognition surveillance capability of the state by bringing back Mao-era human snitching. Wang writes that Xi wants local surveillance that is “more visible, more invasive, always on the lookout for real or perceived threats. Officers patrol apartment buildings listening for feuding neighbors. Officials recruit retirees playing chess outdoors as extra eyes and ears. In the workplace, employers are required to appoint ‘safety consultants’ who report regularly to the police.”
 
Xi, Wang reports, explicitly links this new emphasis on human domestic surveillance to the era when “the party encouraged residents to ‘re-educate’ purported political enemies, through so-called struggle sessions where people were publicly insulted and humiliated …” Creating a society of snitches supports the vast network of social media surveillance, in which every “improper” message or text can be reviewed and flagged by AI. Chinese citizens are already followed everywhere by location beacons and a national network of surveillance cameras and facial recognition technology.
 
Marwa Sayed writes about the strategy of technology surveillance contained in several bills in New York State. One bill in the state legislature would force the owners of driver-for-hire vehicles to install rear-facing cameras in their cars, presumably capturing private conversations by passengers. Another state bill would mandate surveillance cameras at racetracks to monitor human and equine traffic, watching over people in their leisure time. “Legislators seem to have decided that the cure to what ails us is a veritable panopticon of cameras that spares no one and reaches further and further into our private lives,” Sayed writes.
 
She notes another measure before the New York City Council that would require the Department of Sanitation to install surveillance cameras to counter the insidious threat of people putting household trash into public litter baskets. Sayed writes:
 
“As the ubiquity of cameras grows, so do the harms. Research shows that surveillance and the feeling it creates of constantly being watched leads to anxiety and paranoia. People may start to feel there is no point to personal privacy because you’ll be watched wherever you go. It makes us wary about taking risks and dampens our ability to interact with one another as social creatures.”
 
Without quite meaning to, federal, state, and local authorities are merging the elements of a national surveillance system. This system draws on agencies’ purchases of our sensitive, personal information from data brokers, as well as increasingly integrated camera, facial recognition, and other surveillance networks.
 
And don’t think that organized human snitching can’t come to these shores either.
 
During World War One, the federal government authorized approved citizens to join neighborhood watch groups with badges inscribed with the words, “American Protection League – Secret Service.” At a time when Americans were sent to prison for opposing the war, the American Protection League kept tabs on neighbors, always on the watch out for anyone who seemed insufficiently enthusiastic about the war. Americans could be reported to the Department of Justice for listening to Beethoven on their phonographs or checking out books about German culture from the library. 
 
Today, large numbers of FBI and other government employees secretly “suggest” that social media companies remove posts that contain “disinformation.” They monitor social media to track posts of people, whether targeted by the FBI as traditional Catholics or observant Muslims, for signs of extremism. As world tension grows between the United States and China, Russia, Iran and North Korea, something like the American Protection League might be resurrected soon in response to a foreign policy crisis. Its digital ghost is already watching us.

The surveillance state is hitting small businesses hard lately. If the “Make Everyone a Spy” provision weren’t enough, the Corporate Transparency Act (CTA) imposes sweeping disclosure requirements on “beneficial owners” of small businesses, with harsh punishments for mistakes on an official form.
 
After the National Small Business Association sued the Treasury Department, a federal court declared the CTA unconstitutional. It issued a scholarly opinion that explored the nuances of Congress’s power to regulate interstate commerce. Treasury appealed to the Eleventh Circuit. In our amicus brief, PPSA tells the Eleventh Circuit that the lower court got it right, but that there’s an easier way to resolve this case. We inform the court that the Fourth Amendment provides the “straightforward and resounding answer” that the CTA is unconstitutional.
 
PPSA warns that the CTA’s database provisions pose an unprecedented threat to Americans’ privacy that are “even more disturbing” than the new rule’s disclosure requirements. We explain that the information collected from tens of millions of beneficial owners will be stored in what the government calls an “accurate, complete, and highly useful database” that can be searched by multiple federal agencies, no warrant required.
 
And while the government claims this data will be used to catch tax cheats, the CTA says it will be used in conjunction with state and tribal authorities, who have no power to enforce federal tax laws. Creating such a database for warrantless inspection by the FBI, IRS, DEA, and Department of Homeland Security is obviously ripe for abuse.
 
Our brief explains how this database could be used to identify owners of businesses with an ideological character – like political booksellers – and single out their investors for retaliation. This is not a far-fetched hypothetical. Many agencies, including the Treasury Department, have engaged in politically motivated financial investigations, documented in detail by the House Judiciary Committee.
 
Our brief notes that the database will be so sophisticated that it should be evaluated under a U.S. Supreme Court precedent addressing high-tech surveillance, just as the Fourth Circuit did for Baltimore’s database-driven aerial surveillance program. And that precedent explains that surveillance tools can’t be used to undermine the sort of privacy that existed when the Fourth Amendment was adopted. We told the court:
 
“This database thus has the sort of ‘depth, breadth, and comprehensive reach,’ that is simply incompatible with ‘preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’”
 
As pernicious as the database itself is, recent advances in technology make it even worse. With modern machine learning, seemingly innocuous personal details can be linked up in disturbing ways. For instance, researchers have known how to identify authors based on a collection of anonymous posts since 2022. PPSA points out that the government could identify authors with views it dislikes, see if they pop up in the beneficial owner database, and have multiple agencies launch pretextual investigations.
 
Next, we address how advancing AI technology could make such surveillance even more potent, then urged the court not to “leave the public at the mercy of advancing technology,” but to preserve Founding-era levels of privacy despite the march of technology. Readers might notice a pattern of AI exacerbating existing privacy invasions, from mass facial recognition to drone surveillance to a proliferating body of databases.
 
So far, the government has relied on the “special needs” exception. This rule allows the government to keep its own house in order, with the warrantless drug testing of schoolteachers and top-secret national security employees. But this authority is often abused, as we’ve noted previously. Our brief explains that this exception doesn’t even apply to information collected to identify crimes – which is exactly what the government claims the CTA is supposed to help with.
 
But the struggle for constitutional rights and privacy remains multilayered. If the CTA remains struck down, the government will still be purchasing vast amounts of Americans’ personal information from shady “data brokers.” That’s why we applauded the House recently for passing the Fourth Amendment Is Not For Sale Act, and urge the Senate to do so as well. Now it is up to the Eleventh Circuit to protect the American people from an overbearing government, hungry to track our every move.

​Amnesty International released a report based on interviews with 32 Chinese students, including 12 from Hong Kong, studying in universities in eight countries – from the United States to Belgium, Canada, France, Germany, the Netherlands, Switzerland, and the United Kingdom.
 
Sarah Brooks, Amnesty International’s China Director, said that even when Chinese students study thousands of miles from home, many live in fear. “The Chinese authorities’ assault on human rights activism is playing out in the corridors and classrooms of the many universities that host Chinese and Hong Kong students,” she said.
 
A typical story was told by a student who attended a commemoration of the 1989 Tiananmen Square massacre. She was careful not to share her real name with anyone involved in the protest or to post anything online. Yet, a few hours later she heard from her father in China, who had been grilled by security officials. 
 
Such surveillance could possibly be performed by a quick study of online images. About one-half of Amnesty’s interviewees said they had been photographed or recorded at events by someone present at the protest. The only conclusion to draw from this is that China has enough spies in the United States and Western countries to show up and shadow protest events. Many students said they censor themselves online – even in the classroom – due to the perceived risk their comments and opinions will be reported. One-third of students said they changed the focus of their studies or dropped out of planned academic careers because of this pressure.
 
“Threats made to family members in mainland China included to revoke their passports, get them fired from their jobs, prevent them from receiving promotions and retirement benefits, or even limiting their physical freedom,” Amnesty reports. In some instances, families have been pressured to cut off financial support for their children.
 
More than one-half of the students interviewed said they suffered mental health issues linked to their fears, ranging from stress and trauma to paranoia and depression. One case led to hospitalization.
 
Western universities have been slow to recognize and counter these threats to students. Some academics have even sided with China against dissident students. Amnesty reports that a student was dropped by a Western university researcher on a project after learning that she had participated in a protest critical of China.
 
“The impact of China’s transnational repression poses a serious threat to the free exchange of ideas that is at the heart of academic freedom, and governments and universities must do more to counter it,” Brooks said.
 
Universities need to be fully aware of the threat of surveillance and retaliation against their students from China. The U.S. government must also take countermeasures to stop Chinese surveillance of students in the United States, even if this means expelling diplomats or tracking others who surveil and harass students exercising their right to free speech. We must also be aware of the dangers of purchased or posted data and videos that expose Chinese students to harm.
 
Amnesty’s report is a reminder that that in the United States, it is not just the U.S. federal government that surveils Americans and visitors to our shores.

Facial recognition software is useful but fallible. It often leads to wrongful arrests, especially given the software’s tendency to produce false positives for people of color.
 
We reported in 2023 on the case of Randall Reid, a Black man in Georgia, arrested and held for a week by police for allegedly stealing $10,000 of Chanel and Louis Vuitton handbags in Louisiana. Reid was traveling to a Thanksgiving dinner near Atlanta with his mother when he was arrested. He was three states and seven hours away from the scene of this crime in a state in which he had never set foot.
 
Then there is the case of Portia Woodruff, a 32-year-old Black woman, who was arrested in her driveway for a recent carjacking and robbery. She was eight months pregnant at the time, far from the profile of the carjacker. She suffered great emotional distress and suffered spasms and contractions while in jail.
 
Some jurisdictions have reacted to the spotty nature of facial recognition by requiring every purported “match” to be evaluated by a large team to reduce human bias. Other jurisdictions, from Boston to Austin and San Francisco, responded to the technology’s flaws by banning the use of this technology altogether.
 
The Washington Post’s Douglas MacMillan reports that officers of the Austin Police Department have developed a neat workaround for the ban. Austin police asked law enforcement in the nearby town of Leander to conduct face searches for them at least 13 times since Austin enacted its ban. Tyrell Johnson, a 20-year-old man who is a suspect in a robbery case due to a facial recognition workaround by Austin police told MacMillan, “We have to follow the law. Why don’t they?”
 
Other jurisdictions are accused of working around bans by posting “be on the lookout” flyers in other jurisdictions, which critics say is meant to be picked up and run through facial recognition systems by other police departments or law enforcement agencies.
 
MacMillian’s interviews with defense lawyers, prosecutors, and judges revealed the core problem with the use of this technology – employing facial recognition to generate leads but not evidence. They told him that prosecutors are not required in most jurisdictions to inform criminal defendants they were identified using an algorithm. This highlights the larger problem with high-tech surveillance in all its forms: improperly accessed data, reviewed without a warrant, can allow investigators to work backwards to incriminate a suspect. Many criminal defendants never discover the original “evidence” that led to their prosecution, and thus can never challenge the basis for their case.
 
This “backdoor search loophole” is the greater risk, whether one is dealing with databases of mass internet communications or facial recognition. Thanks to this loophole, Americans can be accused of crimes but left in the dark about how the cases against them were started.

​Nafees Syed and Kamel El Hilali, fellows at the Information Society Project at Yale Law School, wrote in CNN.com.
 
“The Reforming Intelligence and Securing America Act (RISAA) passed by Congress last month did anything but reform a system that subjects Americans to unconstitutional government surveillance …
 
“While the law includes exemptions for some public facilities, such as restaurants and community centers, the number of businesses and entities that offer a Wi-Fi connection means that intelligence agencies may compel places such as airports, train stations, transport companies (trains, subways, buses) and shopping malls to convey their customers’ communications data to intelligence agencies upon presentation of a directive requiring them to cooperate.
 
“This provision transforms a law intended to target non-US persons abroad into a domestic surveillance tool.”