Tag: warrantless surveillance

The Trump Surveillance State

The Fourth Amendment protects all persons from warrantless government searches and seizures of their persons, houses, papers and effects. It requires that warrants be supported by probable cause of crime and specifically describe the place to be searched and the persons or things to be seized.

Last week, for the first time in the modern era, the government argued to the Supreme Court of the United States that the Fourth Amendment to the Constitution did not outlaw general warrants. General warrants were issued in the colonial era by a secret court in London. They were not based on probable cause of crime or even on articulable suspicion about a potential defendant. They did not identify a target or state what crime was being investigated.

Rather, general warrants were based on governmental need; a meaningless standard as whatever the government wants it will tell a court it needs. The warrants authorized the bearer of the warrant to search wherever he wished and seize whatever he found.

The stated motivation for the general warrants was the British government’s enforcement of the Stamp Act. That legislation required all colonists to have stamps affixed to all papers, books and newspapers in their possession. The enforcement of the Stamp Act was the government’s fig leaf for spying.

We know that the true reason for the Stamp Act was to conduct surreptitious searches for revolutionary materials. We know this because during the one-year existence of the Stamp Act — 1765 — a group of enterprising students at the College of New Jersey, now known as Princeton University, calculated that more revenue was spent to enforce the act than was collected by the sale of the stamps.

Historians believe that the use of general warrants for the enforcement of the Stamp Act pushed many colonists into the independence camp 10 years later in 1775. The use of general warrants also motivated James Madison and his colleagues in 1791 to craft the Fourth Amendment whose specificity requirement “particularly describing the place to be searched and the persons or things to be seized” poignantly did away with search where you wish and seize whatever you find.

Until now.

Now, in one week on Capitol Hill, the right to privacy is facing its gravest challenges since pre-colonial days, in Congress and the Supreme Court. Congress will wrestle with Section 702 of the Foreign Intelligence Surveillance Act, which expires in just days, and the court will hear a claim that general warrants are still viable.

Sec. 702 permits warrantless surveillance on Americans by permitting federal agents to use software that allows them to conduct surveillance of all fiber optic means of communication — mobile phones, message texting, emails — based on the lawful communications of some Americans to foreign persons and then their subsequent lawful communications to other Americans. The “other Americans” can include all 340 million of us.

Theoretically, the data gathered from these warrantless searches cannot be used for criminal prosecutions, since even the feds who do this spying have told members of Congress that they recognize the need for search warrants to access the content of the data. There are at least two reasons that no one should believe what the feds have said. The first is the feds lie. In 2023, they accessed the content of the data thousands of times without warrants. The second reason is that Madison and the Fourth Amendment’s ratifiers did not believe the government would restrain itself, hence the specificity requirement.

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House Renews FISA Section 702, Rejects Warrant Requirement

The House voted 235 to 191 on Wednesday to keep Section 702 of the Foreign Intelligence Surveillance Act running for another three years, declining once more to require federal agents to get a warrant before searching Americans’ communications scooped up under the program.

Around twenty Republican privacy hawks broke with leadership and joined Democrats in opposition, but the bill cleared the chamber with hours to spare before the Thursday midnight expiration.

Section 702, first authorized in 2008, lets intelligence agencies intercept the electronic communications of foreign nationals outside the United States without a warrant.

The catch, and the part that has driven nearly two decades of reform fights, is that those intercepts routinely sweep up the texts, calls, and emails of Americans who happen to be in contact with the roughly 350,000 foreign targets surveilled each year. That data sits in a federal database, and the FBI can search it for Americans’ information without going to a judge first.

The reforms attached to the renewal do not change that. They tinker around the edges. Federal agents will need an attorney’s sign-off before targeted reviews of Americans’ data, each query will require written justification submitted to the Office of the Director of National Intelligence, and misuse can now carry up to five years in prison.

The FBI will also have to file monthly reports to oversight officials defending searches involving Americans.

None of this requires a judge or forces the government to articulate probable cause before reading what an American wrote or said.

A bipartisan bloc has pushed for almost twenty years to require specific court approval before agents can pull up an American’s communications from the 702 trove, arguing that anything less is a Fourth Amendment workaround.

The bill that passed Wednesday explicitly references the Fourth Amendment in its text. It just does not require a warrant to honor it.

We obtained a copy of the bill for you here.

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Mike Johnson’s Crusade to Renew Warrantless NSA Spying on Americans Culminates This Week

House Speaker Mike Johnson is on a crusade. He is determined to pass a three-year, reform-free renewal of the notorious FISA law that authorizes the NSA to spy on the communications of American citizens, on U.S. soil, without warrants of any kind.

Immediately prior to the last (unsuccessful) attempt by Johnson to pass a new reform-free renewal of this spying law — just two weeks ago — I wrote about the bizarre and deeply bipartisan history of FISA domestic spying and how the U.S. somehow became a country that authorizes its surveillance state to target American citizens, all without warrants.

I will not recount all of that here, except to note that — like the 2001 Patriot Act — the original law empowering the NSA to spy on Americans without warrants was such a self-evident departure from American tradition that passage was only possible by portraying it as a mere temporary emergency measure. Yet those spying powers have now become one of the many such “temporary” and “emergency” measures that have seamlessly become a quasi-permanent fixture of the U.S. government. This upcoming week in the House will determine whether it becomes genuinely permanent and, worse, forever immune to reforms.

The FISA bill that permits warrantless NSA spying on American citizens was first enacted by Nancy Pelosi’s House in 2008, then signed into law by President Bush. The law provided for those powers to expire four years later, unless Congress approved renewal.

The law was first renewed in 2012 with the support of the Obama White House, this time for five years, without any reforms. When that five-year renewal was set to expire in 2018, Congress, this time backed by the Trump White House, passed a six-year reform-free renewal, requiring a new vote in 2024.

For the 2018 renewal, there was a mountain of evidence demonstrating abuse, which in turn gave rise to steadfast opposition to such a renewal from dozens of members of both parties (who were demanding, among other reforms, the addition of a warrant requirement for spying on Americans). As a result, then-Speaker Paul Ryan (R-WI) was forced to rely on dozens of Democratic representatives to secure FISA renewal.

Ryan accomplished this by working in close tandem with three key California Democrats: then-Minority Leader Nancy Pelosi, ranking Intelligence Committee member Adam Schiff, and Eric Swalwell (D-CA). That liberal trio led 65 House Democrats alongside 191 Republicans to vote to endow a President they were calling a Hitler-type fascist with virtually unlimited power to spy on Americans without warrants.

The last time the FISA bill was renewed was four years after that 2018 vote: in April, 2024, with the support of the Biden White House and the key support of newly elected House Speaker Mike Johnson. That time, Congress was only willing to extend it only for two years, meaning the bill was scheduled to lapse on April 17, 2026, unless it was renewed again.

That is why Mike Johnson is now tasked with securing a new multi-year renewal of FISA with no reforms. On April 17 — last week — Johnson’s first attempt to renew the spying law for 18 more months failed to secure the necessary votes in the House for renewal He was thus forced to desperately plead with the chamber for a short 10-day extension to give more time to pressure the 20 House GOP holdouts to change their minds, and to try to induce more Democratic defections.

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The Surveillance Accountability Act Demands Warrants for Data

Rep. Thomas Massie (R-KY) and Rep. Lauren Boebert (R-CO) have introduced the Surveillance Accountability Act, a bill that feels like someone took the Fourth Amendment and actually meant it.

The legislation aims “to ensure that all searches that significantly impinge on the privacy or security of a person require a warrant based on probable cause” and to create “a right of action for violations of Fourth Amendment rights.” That covers the kinds of searches federal agencies currently conduct without judicial oversight: pulling your financial records from banks, requesting your browsing history from ISPs, buying your location data from brokers, and harvesting your biometric information from surveillance cameras.

We obtained a copy of the bill for you here.

The bill lands in the middle of a brutal Congressional fight over FISA Section 702, the surveillance authority that currently lets the FBI search Americans’ communications.

The new legislation goes much further than the various reform bills circulating around that debate. Where the SAFE Act and the Government Surveillance Reform Act target specific loopholes in FISA, the Surveillance Accountability Act tries to close all of them at once by rewriting the baseline rule: if the government wants your data, it needs a judge’s permission.

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FBI Resumes Buying Americans’ Location Data Without Warrants

The FBI is buying Americans’ location data again. Director Kash Patel confirmed it to lawmakers on Wednesday, confirming what we already knew: that it has resumed purchasing commercial surveillance data, including detailed location histories, from data brokers.

The brokers feeding that data pipeline source much of it from phone apps and games that people use daily without realizing they’re being tracked.

By the time a precise location record reaches a federal agency, it may have originated from a weather app or a mobile game, passed through an advertising middleman, and been packaged for resale, with the person who generated it never consulted or notified.

Senator Ron Wyden asked Patel directly whether the FBI would commit to not buying Americans’ location data without a warrant. Patel declined. The agency “uses all tools…to do our mission,” he told the committee.

He followed up by confirming that “we do purchase commercially available information that is consistent with the Constitution and the laws under the Electronic Communications Privacy Act,” adding that it “has led to some valuable intelligence for us.”

Wyden called that arrangement exactly what it is: the government buying what it cannot legally seize. Purchasing information on Americans without a warrant is “an outrageous end-run around the Fourth Amendment,” he said, referring to the constitutional protection against unreasonable searches and seizures.

The workaround is not unique to the FBI. Federal agencies are generally required to convince a judge that probable cause exists before demanding private records from a tech or phone company.

The commercial data market offers a way around that requirement entirely. Agencies simply purchase what they would otherwise need a warrant to obtain, creating a market for data grabbing and exploiting a legal gap that courts have not yet addressed.

Wyden and other lawmakers introduced the Government Surveillance Reform Act last week, which would require a court-authorized warrant before any federal agency can purchase Americans’ data from brokers. The bill is bipartisan and bicameral. Without it, the gap that lets agencies buy their way around the Fourth Amendment remains open.

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Germany’s “Transparency Act” Lets Regulators Search Media Offices and Platforms Without Warrants

The German government has discovered a clever way to expand its surveillance powers: call it “transparency.” The federal cabinet has approved a bill that would let state agents enter media offices and digital platforms without needing a judge’s permission.

The official justification, ensuring honesty in political advertising, sounds harmless enough until you read the fine print and realize it’s about as transparent as a brick wall.

The “Political Advertising Transparency Act” is described as an effort to align with new EU rules on political ad disclosure.

What it actually does is grant the Bundesnetzagentur, a telecom regulator, search powers usually reserved for criminal investigators.

If the agency suspects a company has failed to file the right paperwork, it could send its people to “inspect” offices without a court order, provided they claim there’s an “imminent danger.”

“Imminent danger” is one of those magic bureaucratic phrases that can mean anything from “credible bomb threat” to “somebody forgot to upload a PDF.”

Once that phrase appears in law, the limits become a matter of interpretation.

Legal experts have warned that the law tramples Germany’s Basic Law, which guarantees the inviolability of the home. For journalists, the stakes are higher.

Confidential sources, ongoing investigations, and protected data could all be exposed to inspection because a regulator feels “concerned” about compliance.

In plain language: this opens the door to state intrusion under the banner of good governance.

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Pennsylvania High Court Rules Police Can Access Google Searches Without Warrant

The Pennsylvania Supreme Court has a new definition of “reasonable expectation.” According to the justices, it’s no longer reasonable to assume that what you type into Google is yours to keep.

In a decision that reads like a love letter to the surveillance economy, the court ruled that police were within their rights to access a convicted rapist’s search history without a warrant. The reasoning is that everyone knows they’re being watched anyway.

The opinion, issued Tuesday, leaned on the idea that the public has already surrendered its privacy to Silicon Valley.

We obtained a copy of the ruling for you here.

“It is common knowledge that websites, internet-based applications, and internet service providers collect, and then sell, user data,” the court said, as if mass exploitation of personal information had become a civic tradition.

Because that practice is so widely known, the court concluded, users cannot reasonably expect privacy. In other words, if corporations do it first, the government gets a free pass.

The case traces back to a rape and home invasion investigation that had gone cold. In a final effort, police asked Google to identify anyone who searched for the victim’s address the week before the crime. Google obliged. The search came from an IP address linked to John Edward Kurtz, later convicted in the case.

It’s hard to argue with the result; no one’s defending a rapist, but the method drew a line through an already fading concept: digital privacy.

Investigators didn’t start with a suspect; they started with everyone. That’s the quiet power of a “reverse keyword search,” a dragnet that scoops up the thoughts of every user who happens to type a particular phrase.

The justices pointed to Google’s own privacy policy as a kind of consent form. “In the case before us, Google went beyond subtle indicators,” they wrote. “Google expressly informed its users that one should not expect any privacy when using its services.”

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Tulsi Gabbard Now Supports FISA-702 In Order To Get Confirmed As Director Of National Intelligence

As the story is told [SEE HERE], and it aligns with every scintilla of researched data on the darkest and deepest elements of the Deep State, DNI nominee Tulsi Gabbard has reversed her position and will now support FISA-702, the warrantless searches of American communication and electronic metadata.

Apparently the FISA process and the 702 aspect (specific to American citizens) is the line in the sand the Senate Select Intelligence Committee has drawn.  If Tulsi Gabbard does not support it, her confirmation is in doubt.  As a result, she has reportedly reversed her position and now supports it.

This is absolutely par for the course.

It should be remembered, in the last reauthorization of FISA-702 congress exempted themselves from the warrantless search and surveillance system used by the U.S. Intelligence Apparatus.  Congress forbids the FBI or any entity with access to the NSA database, from being allowed to use the process to search themselves or their staff.  However, every other American does not enjoy this same protection.

After spending years asking every representative of consequence why they support the FISA-702 process, I can tell you every one of them says they believe it is needed because the IC tells them there are just too many domestic terror threats that need to be monitored.

It is impossible to find a person in DC who will forcefully try to stop FISA-702 reauthorization.

If you ask me why in hindsight, I now take the position that FISA-702 is the gateway to the massive surveillance system currently being put into place using Real ID and the AI facial recognition software provided by Palantir (CIA exploit).  In essence, the gateway that allows the full-scale surveillance state, is opened by the prior authorization of FISA-702 that negates any 4th amendment protection.

Why? Because all of the surveillance mechanisms within the network being updated and enhanced by AI search and capture, comes from the IC being allowed to exploit the NSA database.  That same database access allowance is the targeting mechanism for FISA-702.  If warrantless searches of the NSA database were stopped, the Palantir/IC and Tech Bro collaboration could hit a brick wall.

Against this backdrop, the SSCI telling Tulsi Gabbard that her nomination approval is contingent upon her support for FISA-702, simply makes sense.

WASHINGTON DC – […] Multiple senators from both parties who met with the former Hawaii lawmaker in recent days told us they emerged from those sessions unsure about Gabbard’s position on the 702 program. During these meetings, senators have pressed Gabbard on her previous public statements on the issue, as well as her votes against 702 reauthorization throughout her eight years in Congress.

GOP national security hawks in particular viewed this as problematic, we’re told, fueling renewed doubts about her confirmation prospects. Sen. James Lankford (R-Okla.), a member of the Senate Intelligence Committee, suggested on a WSJ podcast Wednesday that Gabbard should disavow her previous opposition to the 702 program.

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Oregon Police Improperly Used Aerial Camera To Bust Marijuana Grow, State Appeals Court Says

Oregon’s Court of Appeals chided the state’s police force on Wednesday for using warrantless “technologically-enhanced surveillance” to bust an illegal marijuana operation, sending the court’s clearest message yet about how law enforcement may use the increasingly popular, but controversial technology.

The case, captured in an eight-page ruling from a three-judge panel, centers on a June 2021 multi-county investigation involving the Polk County Sheriff’s Office and Oregon State Police. The defendant, 54-year-old Sengdara Nakhiengchahn, was not the target of the investigation, but Oregon State Police Sergeant Tyler Bechtel, a leading officer on the case, noticed “what looked to be a massive agricultural operation” that “was likely a marijuana grow,” while flying in a surveillance plane nearly 5,000 feet in the air, according to the ruling.

The defendant was charged in August 2021 with two felonies for possession and manufacturing of marijuana. She pled guilty in a conditional deal that allowed her to get the possession charge dropped by serving two years of probation, court records show. But she maintained her right to appeal the charges, arguing the evidence gathered from aerial surveillance constitutes a warrantless and unlawful search and should not have been admissible.

The appeals court agreed with Nakhiengchahn, returning the case back to the trial court where she can withdraw her guilty plea. Bechtel did not respond to an email seeking comment.

“While the trial court didn’t agree with us, we’re grateful the appellate court did,” said Luke Miller, Nakhiengchahn’s trial attorney, in a statement. “It’s important for Oregonians to maintain the right to privacy, and be free from government intrusion absent legal justification for such intrusion.”

Jenny Hansson, a spokeswoman for the Oregon Department of Justice, said officials were still reviewing the decision and could decide to appeal the court’s ruling in the coming weeks.

Jolene Kelly, a spokeswoman for the Oregon State Police, declined to comment on the ruling or its findings, but said in an email the agency “remains committed to following applicable laws and court directives.”

The ruling was lauded by civil rights advocates and privacy watchdogs who were fresh off of a fight in the Oregon Legislature over Senate Bill 238, which would have extended unprecedented power to police to use unmanned aerial surveillance devices like drones when responding to 911 calls, executing a warrant or responding to “exigent circumstances.” The bill ultimately died in the House Rules Committee without a vote.

The ACLU of Oregon opposed the bill, warning in a news release that it was unnecessary and “undermines basic rights including privacy and free speech.”

Kelly Simon, legal director of the ACLU of Oregon, said Wednesday’s ruling marks an “important decision to ensure that as police technology advances, we are maintaining the integrity of our warrant requirements under the Oregon Constitution.”

“We’re beginning to see in the surveillance tech industry all sorts of high-powered enhancements,” she told the Capital Chronicle. “It is important that our courts maintain the integrity of our warrant requirements by making sure that if law enforcement wants to use those enhancements, they go to court first, they present the evidence they have against a person and they get permission to do that.”

In the ruling, Justice Scott A. Shorr wrote that state police saw “materially different information” through a camera attached to their aircraft than what could’ve been seen with a naked eye, striking down a decision by Polk County Circuit Judge Rafael A. Caso to allow evidence tied to the camera footage to be admitted at trial.

“We have never upheld as constitutionally permissible an officer’s technologically enhanced surveillance to see what was otherwise indiscernible. We decline to do so here,” Shorr said. “In this case, the officer used technology to obtain information from inside defendant’s private structures that was undetectable from his vantage point in public airspace.”

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Fifth Circuit Affirms Reasonable Expectation of Privacy in Cloud Storage in Dropbox Case

A federal appeals court has ruled that state officials violated the Fourth Amendment when they orchestrated the covert retrieval of documents from a nonprofit’s Dropbox folder, an outcome that significantly strengthens legal protections for digital privacy in cloud-based environments.

In a 25-page decision issued May 28, 2025, the US Court of Appeals for the Fifth Circuit held that The Heidi Group, a Texas-based pro-life healthcare organization, had a reasonable expectation of privacy in its digital files and that a state investigator’s role in acquiring them without judicial authorization amounted to an unconstitutional search.

We obtained a copy of the decision for you here.

Writing for the court, Judge Andrew S. Oldham emphasized that the constitutional right to be free from unreasonable searches extends to “the content of stored electronic communications,” including files housed in commercial cloud platforms.

“Heidi has a reasonable expectation of privacy in its documents and files uploaded to Dropbox,” the opinion stated. “Heidi’s records are analogous to letters, phone calls, emails, and social media messages: Each contains information content transmitted through or stored with an intermediary that is not intended to ‘be broadcast to the world.’”

The controversy arose after Phyllis Morgan, a former employee of The Heidi Group, exploited her lingering access to the organization’s Dropbox folder for nearly a year after being terminated.

Rather than reporting the breach or seeking lawful channels to obtain the data, a senior investigator from the Texas Health and Human Services Commission’s Office of Inspector General (OIG), Gaylon Dacus, allegedly encouraged the ex-employee to continue accessing the nonprofit’s confidential materials and forward them to the state.

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