With Republicans controlling both houses of Congress, President Donald Trump’s reversal from opponent to supporter of Section 702 of the Foreign Intelligence Surveillance Act (FISA) seemed certain to guarantee renewal of the law. That’s not what happened. Instead, Section 702 of the controversial spying legislation won only a temporary extension, to April 30, as civil libertarians and surveillance-state supporters from both major parties continue to battle. Hopefully, the outcome is the long-deserved demise of surveillance practices that threaten the privacy of Americans.

Foreign Intelligence Gathering Crosses Into Domestic Surveillance

Enacted in 2008, Section 702 of FISA authorized the ongoing interception (originally under executive authority) of online communications involving alleged national security threats through “the targeting of non-United States persons,” as the Office of the Director of National Intelligence puts it.

But intercepting communications inevitably scoops up messages and data involving Americans. As the U.S. government’s own Privacy and Civil Liberties Oversight Board put it in a 2023 report, “Section 702 poses significant privacy and civil liberties risks, most notably from U.S. person queries and batch queries” in which multiple searches on intercepted data are run as part of a single action. The report cautioned that surveillance often extends to Americans “upstream” of nominal foreign targets.

Just two years ago, then-presidential candidate Trump demanded that Congress “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS,” referring to revelations that his campaign organization had been the subject of abusive government surveillance.

But now Trump is president, and the spies work for him. His views have changed accordingly. “The fact is, whether you like FISA or not, it is extremely important to our Military,” he argued earlier this month as he called for a “clean” (unamended) reauthorization of Section 702.

Bipartisan Disagreement Over Surveillance Powers

Surveillance, however, is one of those few remaining issues where Washington, D.C. battle lines are not inherently partisan. President Joe Biden supported Section 702 surveillance powers when he was in office, just as Trump does now. Meanwhile, progressive Rep. Ro Khanna (D–Calif.) insists that “everyone who loves the constitution must vote no” on FISA extension, echoing libertarian-leaning Rep. Thomas Massie’s (R-Ky.) vow of “no FISA reauthorization without a warrant requirement for US citizens!” FISA’s Section 702, which periodically expires, has repeatedly won reauthorization—but often by squeakers, as civil libertarian lawmakers demand reforms to the law or the outright elimination of its powers.

Even Trump, while calling for FISA 702 renewal, concedes that the law is dangerous. “While parts of FISA were illegally and unfortunately used against me in the Democrats’ disgraceful Witch Hunt and Attack in the RUSSIA, RUSSIA, RUSSIA Hoax, and perhaps would be used against me in the future, I am willing to risk that as a Citizen in order to do what is right for our Country,” he wrote on Truth Social.

But not everybody has Donald Trump’s legal team, or his faith that the tradeoff between the law’s risks and rewards is worthwhile. Many people, in fact, view the misuse of surveillance power in domestic political squabbles as further evidence that the government needs to be stripped of some of its toys. The result, last week, was a short-term extension of Section 702 through April 30 while Congress continues debating the matter.

For those of us who take seriously the warnings about the law, including those of the government’s own civil liberties oversight board—which Trump gutted last year and whose existence is now caught up in litigation—that means a fresh opportunity to reform or kill Section 702.

Americans Would Be ‘Stunned’ by Surveillance Abuses

“Section 702 is rife with problems, loopholes, and compliance issues that need fixing,” warns Matthew Guariglia of the Electronic Frontier Foundation (EFF) in a recent call for changes in Section 702 or its elimination. “The National Security Agency collects full conversations being conducted by and with targets overseas—including by and with Americans in the U.S.—and stores them in massive databases. The NSA then allows other agencies, including the Federal Bureau of Investigation, to access untold amounts of that information.”

Guariglia adds that the FBI, which supposedly focuses primarily on domestic matters and not overseas intelligence, “can query and even read” the U.S. side of international communication without a warrant and without informing targets that federal agents are pawing through their messages.

Sen. Ron Wyden (D–Ore.), who has opposed domestic surveillance activities for many years, often alongside Sen. Rand Paul (R–Ky.), says the situation is even worse than is widely understood. Last month he cautioned that “there’s another example of secret law related to Section 702, one that directly affects the privacy rights of Americans. For years, I have asked various administrations to declassify this matter. Thus far they have all refused….When it is eventually declassified, the American people will be stunned that it took so long and that Congress has been debating this authority with insufficient information.”

The Cato Institute’s Patrick G. Eddington takes such warnings to heart. Earlier this month, he summarized the debate over Section 702 thusly:

Congress is being asked to grant a clean 18-month reauthorization based on classified threat vignettes produced by the agencies seeking reauthorization, evaluated by an oversight board that has been politically gutted, with the internal compliance watchdog that would catch abuses abolished, in a context where sensitive FBI searches of Americans’ communications tripled last year with no explanation, while a senator with an excellent predictive track record on surveillance abuses warns that the Section 702 program is operating under a secret legal interpretation that would “stun” the American public if declassified.

Let’s remember that the current U.S. president was once himself a target of federal surveillance, notwithstanding his recent conversion to national surveillance cheerleader upon regaining control of the intelligence apparatus. It’s high time to hold a full, transparent, and public debate over the domestic spying powers that Section 702 grants to the intelligence community. Or else, we should get rid of the law and the worrisome and secret activities that it authorizes.

We know that the federal government has abused its surveillance powers. Lawmakers now have an opportunity to reform such activities or eliminate their legal authorization. They need to act.

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4/24/1963: Sherbert v. Verner argued.

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It’s rare for a novel to open with a protagonist as deliciously and immediately hateable as Natalie Heller Mills, the faux-homesteading tradwife influencer at the center of Caro Claire Burke’s Yesteryear. “I was perfect at being alive,” she informs readers early on. But Natalie turns out to be an unreliable narrator of her own life.

Yesteryear weaves together the story of how Natalie came to be queen of the Instagram moms with a look at her current surreal predicament: waking up one day in what appears to be a real 1800s homestead. There’s an outhouse. Endless laundry to be hand-washed. A husband who isn’t averse to hitting her if she tries to wander off.

The 1800s storyline is intriguing. Is this a dream? A delusion? A reality TV setup? But Mills’ backstory is more compelling and elicits greater sympathy.

Long before launching her Instagram account, Mills—raised in a highly religious and conservative community and then thrown into an impossibly wealthy political family by marriage—constructed an elaborate fantasy world to help reconcile the person she is with the person she thinks she’s supposed to be. Yesteryear may seem at first like a warning about playing pretend to influence strangers online. But it’s ultimately a warning about playing pretend to fool yourself.

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In the 10th season of Queer Eye, the Fab Five come to Washington, D.C., where they provide their “make-better” personal style revamps to two sisters, a charter school teacher, a firefighting single mom, a boat repairman, and a stepfather with a large blended family. The season includes many of the gimmicks Queer Eye viewers have come to expect (or loathe).

Since its launch in 2003 on Bravo and reboot by Netflix in 2018, the show has undermined cultural stereotypes about the LGBTQ community. It didn’t do this by yelling at people, nor did it demand that the state punish bigots. It just highlighted helpful human interactions and met people where they were at. As this popular show did its thing, cultural attitudes changed. In June 2003, according to Gallup, only 39 percent of Americans accepted same-sex marriages; today, it’s 68 percent.

Queer Eye, which is bowing out after this season, furthered this cultural change with a unifying message: No matter your race, political party, or sexual orientation, we can have mutually enriching interactions.

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I have been posting on Chatrie v. United States, the Supreme Court’s geofencing case to be argued on Monday.  In this post, I wanted to talk a bit on why the search question is particularly hard.

The Supreme Court has long struggled to explain what makes government action a “search” of an individuals’ “persons, houses, papers, and effects.”  The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood,  which were about what kinds of warrants were permitted to conduct a physical search.  Many of those cases arose in the setting of trespass actions, in which the validity of the warrant was an affirmative defense to a trespass claim for breaking into a house.  The framing-era debate over warrants was not just about trespass actions, to be clear. In the Writs of Assistance case, for example, James Otis’s arguments against general warrants were made in a representation of Boston merchants who opposed general warrants and (unsuccessfully) urged the court to say they could not be issued.  But at the time of the Fourth Amendment’s enactment, the focus was on general warrants, and in particular on  warrants to conduct physical searches.

A central challenge of modern Fourth Amendment “search” law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.  There is broad agreement that the Fourth Amendment really needs to extend beyond actual physical intrusion: If it didn’t, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records.  The hard question is, what’s the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?

The Court has not done the best job at articulating this, I think.  It did a few things that make it extra hard. Two under-appreciated things stand out.

First, the Court has ignored a lot of the Fourth Amendment’s text, which made the issue a lot harder to understand.  The Fourth Amendment prohibits unreasonable “searches” of “persons, houses, papers, and effects.”  But the Court’s precedents have often just described the issue as being what is a “search,” ignoring the required thing to be searched in that language: “persons, houses, papers, and effects.”  The word “search” has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases like Wilkes, Entick, and the Writs of Assistance case.

Of course, the full text is not always ignored.  As the Court’s curtilage caselaw has frequently noted, the Fourth Amendment “indicates with some precision the places and things encompassed by its protections:  persons, houses, papers, and effects.” Florida v. Jardines, 569 U.S. 1 (2013).  But I think it has been under-appreciated that the proper question is not what is a “search” in some isolated or abstract sense, but rather what is a “search” of “persons, houses, papers, and effects” that reflects the understanding of those terms in the major disputes that inspired the enactment of the Fourth Amendment.

Second, many modern Justices have assumed the correctness of a simple narrative about the Fourth Amendment that Justice Brennan introduced in Warden v. Hayden, 387 U.S. 294 (1967).  Looking for a framework to justify lots of innovations in Fourth Amendment law, Justice Brennan made a pitch that the Fourth Amendment had previously been based on property principles but was henceforth to based on privacy principles:

The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be “unreasonable” within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.

Note that Justice Brennan’s property-to-privacy narrative pre-supposed a switch with two parts.  First,  that there was a property era before the 1960s; and second, that some kind of new thinking was needed that was based on privacy.

As I see it, this was malarkey.  Fourth Amendment law had long been based on a mix of appeals to property-ish notions and privacy-ish notions, going back to 18th Century English debates on general warrants, through 19th Century U.S. cases on the Fourth Amendment, and through the early 20th Century.   There wasn’t an actual property era, and the extension of the Fourth Amendment beyond physical intrusion (generally expressed under the Katz privacy test) is entirely consistent with the prior understandings, the Fourth Amendment’s original public meaning, and the constitutional text.  But property-to-privacy was Justice Brennan’s pitch, and it has exerted a strong influence on how later scholars and Justices imagined both Fourth Amendment history and its current role.

It seems to me that once you go back to the full text of the Fourth Amendment, and once you recognize that Justice Brennan’s property-to-privacy narrative was not accurate, it becomes easier to think through how to deal with the Fourth Amendment search test. The question should be what is a “search” of “persons, papers, houses, and effects,” both for actual physical intrusions (as were the facts at issue when the Fourth Amendment was enacted) and for the modern technological equivalents of those physical intrusions (as have to be recognized to maintain the Fourth Amendment’s role in a technological world).  Identifying the modern technological equivalents can be a challenge, for all the reasons that identifying persuasive analogies in law can be a challenge.  But that, I think, should be the goal.

The difficulty for the Court, though, is that the past treatment of this issue leaves current Justices with a lot of different pieces of the puzzle to latch on to.  The heavy influence of Justice Brennan’s framework has caused a modern split, with some Justices wanting to go back to a property approach that never existed.  If you think the privacy approach is right and requires new understandings of privacy, you run into the challenge of what that privacy test is supposed to mean.  If you turn to the text and focus only on the word “search” in the abstract, putting aside the rest of the text and the 18th century usage in cases like Entick and Wilkes, you run into the many definitions of what is a search that doesn’t itself provide any guidance as to which definition applies.

And this was not a set of concepts that has a common law answer. Recall, as I wrote above, that search and seizure rules at common law arose as affirmative defenses to otherwise-existing causes of action.  This means that, although there was discussion of “searches” and “seizures” in the 18th century cases like Entick and Wilkes in discussions of the facts of those cases, there was no legal concept of what was a “search” or “seizure.”  The issue just didn’t arise under the legal system that existed then. The law we know of today as search and seizure law provided affirmative defenses, not causes of action that required some kind of defined trigger.

To make matters even harder from a judicial administration context, these different approaches are often neither inherently broader nor narrower than others.  They’re just different, with the differences in actual scope often rather unclear.  That makes it extra hard in a world governed by the Marks test, in which lower courts are bound by the narrowest opinion in favor of the winning side when there is no majority opinion.  Under Marks, unless the Court can get to five votes on a particular rationale as to whether there is or is not a search, lower courts may be unable to know which of these different tests to apply.

Of course, it’s entirely possible that a majority of the Justices will be able to reach agreement on these issues in Chatrie.  If so, it could really help lower courts understand how to work through these issues. But given all of these strands of thought, it’s a difficult puzzle to work through.

Oral argument is Monday, 10 a.m. Eastern.

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