While Wired’s sprawling feature story on Edward Snowden is both revelatory and fascinating, it’s also a reminder that it’s reasonable to hold conflicting views about him—both appreciation and disdain. For me, though, the story primarily reinforces the latter.

You can, for example, appreciate that Snowden exposed the extent of National Security Agency (NSA) warrantless searches of millions of emails and phone calls while at the same time wonder how handing over a trove of classified information—some of the same information Snowden claims the government had no business collecting— helps preserve or protect the freedoms that allegedly drove him to become a whistleblower in the first place. Maybe there is a convincing reason. But Snowden doesn’t offer one here.

A person can appreciate that whistleblowers often provide desirable transparency while also accepting that whistleblowing doesn’t put you above the law or make you an arbiter of its constitutionality. It doesn’t seem like Snowden understands this concept either.

You can be thankful that Snowden’s revelations sparked a (somewhat) serious debate regarding the scope of the Patriot Act, government surveillance, and the Fourth Amendment and also believe that handing sensitive intelligence to someone like Glenn Greenwald—a person ostensibly concerned with Constitution and sincerely concerned with embarrassing the United States— undermines his patriotic rhetoric.

In Wired’s story, James Bramford finds our hero, even in his early 20s, struggling with the morality of the world he operates in. When stationed in Geneva early in his career, Snowden had already ascertained that CIA agents were involved in what he found to be ethically compromising situations. Maybe they were. Maybe not. Either way, Snowden could have quit the CIA at that point and approached media outlets or written a book or described the abuses anonymously. He did not. Instead, he continued to climb the intelligence career ladder—a bright and technically gifted employee from all reports—even though he found the entire enterprise distasteful. Why?

It was only his political naiveté concerning the incoming president—“even Obama’s critics were impressed and optimistic about the values that he represented,” Snowden fantasizes in the piece —that stopped him from becoming a whistleblower even earlier.

Alas, Obama did not live up to his expectation, so …

‘If the government will not represent our interests,’ he says, his face serious, his words slow, ‘then the public will champion its own interests. And whistle-blowing provides a traditional means to do so.’

Yes, that is the traditional role of whistleblower. Flagging wrongdoing. For all the courage it takes to do what Snowden did, there is also a disturbing arrogance imbued in his perception of events. Because, despite what they may believe, neither Snowden nor Greenwald represents the public, “democracy,” or the public’s “interests.” We have debates, courts, political institutions, and constitutions to sort that out. Whistleblowers play an important role by helping uncover illicit activity, not by making themselves the new gatekeepers.

If Snowden was dismayed by the magnitude of NSA abuses, he could have exposed them without indiscriminately handing over … well, handing over what?

As Bamford notes “it is very likely that no one knows precisely what is in the mammoth haul of documents—not the NSA, not the custodians, not even Snowden himself.” Haphazardly purloining massive amounts of data, to the extent that not even you have a real understanding of what it entails, and then handing it to a few select media stars that you happen to agree with has nothing to do with democracy.

Or to put it another way: Why should the American people trust Greenwald or Laura Poitras to decide when and how sensitive information about the United States is disseminated? And if Snowden felt compelled to expose what was going on beyond the surveillance program, he could have chosen someone who doesn’t believe the United States is a terror state. What Greenwald engages in is ideological motivated journalism—just spend some time on his Twitter feed for your fill of half-baked Chomskyite idealism. There are dozens of media outlets that would have treated Snowden’s story more judiciously, thoroughly, and journalistically. And for all the legacy media’s faults, few would revel in chance to use the information to damage the United States. Now what we have are snippets of purportedly vital revelations, with information redacted and curated by Greenwald and a few others. That doesn’t sound like democracy to me.

The Wired story features a provocative cover of Snowden photographed embracing an American flag. “I care more about the country than what happens to me,” he claims. But the story only reminds us that Snowden has either shown a complete lack of judgment or has an ideological motivation that goes well beyond his stated reasons for betrayal. Surely it’s not paranoid to wonder why Snowden feels so welcome in Russia, for instance. It’s not the Russian secret police he fears, Snowden tells Bramford, but his “old employers, the CIA and the NSA.” For all our national ethical lapses, it never hurts to put our system into context. And Russia isn’t a terrible place to start if you want to examine what an illiberal state might look like. Snowden doesn’t seem particularly concerned—which, like many of his positions, is concerning.

Follow David Harsanyi on Twitter.

Nothing stirs the passions of Democrats these days quite like the prospect of gutting the Constitution. In an unprecedented act of pretend political bravery, House members held a catered sit-in, demanding Republicans allow a vote to strip away protections of Second, Fifth, and Sixth Amendments of the Constitution. It was quite the scene.

There were the selfie-happy Democrats singing “We Will Overcome” while demanding passage of a bill that those right-wing nutjobs over at the ACLU have “strongly” argued would undermine civil liberties. As of this writing, no participant has been beaten down by the cops or thrown into a dank cell — although, for those who’d forgotten their chargers, iPhone batteries were probably getting perilously low on juice.

Sit strong, heroes!

But the message was clear. If we recklessly cling to the presumption of innocence, the terrorists have already won. If we fail to let bureaucrats create extrajudicial secret government lists that deny Americans their right to due process, we are, in essence, selling ISIS weapons of mass destruction.

Civil rights-era heroes like John Lewis, who lent his considerable legacy to this vacuous grandstanding, was once himself on the terror watch list. He didn’t know how he got on it. He didn’t know how to get off of it. Yet today he believes this Kafkaesque system is a sound way to deny his fellow citizens their rights.

This is the Democratic Party of 2016. Engaging in emotional blackmail and demagoguery, waving pictures of the victims of Islamic terrorism to push an unrelated bill that would not have saved a single one of those lives and will never pass. All while lying about guns. Lying about the laws that govern guns and refusing to vote for, or even discuss, a compromise measure Republicans forwarded in the Senate. It’s been far more important to gin up anger and moral outrage for political gain.

Don’t get me wrong. I hope Democrats dig deep and find the steely resolve to disrupt all of DC’s business until they are given a vote — for weeks or months, if necessary. Shut it all down. It won’t be easy. I mean, it’s going to take some serious courage to support a measure with support polling in the high 80s. But anything less is a moral capitulation to the dark lords at the NRA.

Although there are principled progressives who oppose these efforts, it is worth mentioning that many of the same liberals who claim the filibuster — conducted within the norms of the Senate — is unhinged obstructionism themselves celebrate Democrats. When a shutdown looms because of the GOP, we are bombarded with stories about a broken political system. This event, rest assured, will be treated quite differently. As inane as it is, it will be framed as an “historic” moment that might/could/did change everything in the fight against gun violence. It’s already started.

Well, it’s definitely a histrionic moment. When House Speaker Paul Ryan tried to gavel the body into session the first time, he was shouted down with calls of “Shame!” and “No bill, no break!” (remember that national discussion on civility?) to rising applause from a bunch of people who are perpetually searching for their ’60s moment.

Rep. Sander Levin (D-MI): Think it may well be happening now. Think this may turn out to be Selma-like moment relating to gun violence.

— Laura Rozen (@lrozen) June 23, 2016

Ah, the “Selma envy” moment. The entire day was drenched in that kind of sanctimony. In an interview with MSNBC, Seth Moulton asked: “Were the civil rights organizers just breaking rules and getting publicity?” No. Now, Moulton says a lot of purposefully misleading things about guns in an attempt to scare Americans who don’t know any better. It takes a special kind of duplicity, though, to anoint oneself defender of civil liberties while pushing an authoritarian measure that would deny millions of Americans some of their most basic constitutional rights.

A new Department of Homeland Security report finds the Transportation Security Agency has “not yet resolved” problems with data management and airport security cameras, as TSA doesn’t believe they are responsible for them. In an attached letter, DHS Inspector General John Roth accused TSA of “abusing its stewardship” and said it “cannot be trusted.”

While the TSA can be efficient—I flew over the holidays with my kids and went through security without a hitch—often they are not. In fact, they make travel security not just cumbersome, but ineffective. It’s time they made some significant changes to the way they implement security at airports.

The TSA Often Abuses Americans’ Rights

In this tweet with an accompanying video, a female TSA agent pats down passenger Angela Rye in a way that’s so intimate and invasive, it seems downright absurd. Frustrated and likely humiliated, Rye begins to cry toward the end.

Likewise, recently a young man attempted to walk through security with a large stuffed bear. TSA deemed the bear too large so they confiscated it, then Instagrammed about it, basically bragging they’d snatched the bear. While the Instagramming turned out to be a prank, that doesn’t change the TSA’s overreaction to a young person trying to board a plane with a stuffed animal the size of a person.

But are any of these searches even constitutional? Can the TSA just grab your body parts, your stuffed animal parts, and pat, wipe, grope, or confiscate them at will, even in the name of national security? Many people think the TSA’s protocols violate the Fourth Amendment, which states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

In United States v. Hartwell, the Third Circuit Court decided the Fourth Amendment and administrative search precedent allows for “minimally invasive” searches without a warrant. Justice Samuel Alito wrote the opinion which, in part, states, “escalating in invasiveness only after a lower level of screening disclosed a reason to conduct a more probing search” (emphasis mine).

In Rye’s case, the TSA has not disputed the claim that it randomly flagged her for additional screening. Her pat-down should never have happened, because she had already had the minimally invasive search. The TSA policy of random pat-downs following no flagging, which happens frequently, needs to be put through a strenuous legal test.

The TSA Is Intrusive and Ineffective

Constitutionality aside for a moment, TSA isn’t even good at what they do. Grant it, nobody has flown a plane into a building since September 11, 2011, thanks be to God, but this doesn’t let them off the hook. Remember last year an internal investigation showed TSA Red Team members were able to get past security with hidden weapons and explosives on 67 out of 70 occasions, a terrible ratio by anyone’s standards.

If TSA searches often violate the Fourth Amendment without yielding security benefits to the country, they need to make changes to their safety procedures. One option is to apply supply and demand realities to airports and remove the TSA altogether. Allow airlines to provide as much security as they see fit and let consumers decide where they feel safest.

Inevitably, some airlines would offer full pat-downs, naked scanners, and the like while others might take a less invasive approach to security. After all, in the automotive field cars get safety test ratings after all, and when they get bad ones people generally purchase others until they improve. However, there are problems with this, as economist Tyler Cowen wrote in a 2010 post on the topic:

It’s worth asking how intrusive a search markets would provide, but keep in mind there are significant negative externalities from exploding airplanes and also there are government bailouts which limit the downside. Furthermore companies do not always care enough about ‘extreme negative skewness,’ as we have learned in financial markets and thus there is a case for regulating a tougher security standard. It’s not clear what the freedom-enhancing path looks like and there is no default setting of market accountability. It’s ‘elephant interventions’ all the way down.

Cowen makes salient points: the market isn’t always predictable. Does one want to take the risk of sending this serious an issue out to the private sector when an entire nation’s security is on the line? Cowen concludes: “For airline security, at times we want to treat it as a matter of mere law enforcement, to be handled by others, and one which should not inconvenience our daily lives or infringe on our rights. At the same time, so many Americans view airline security as a vital matter of foreign policy and indeed as part of a war. We own and promote this view and yet we are outraged when asked to behave as one might be expected to in a theater of war.”

We Could Also Profile, Like Israel Does

A third option, beyond keeping the status quo or trading the TSA for private security, is to meet in the middle and demand the TSA radically change its procedures. This would require a philosophical shift from within the organization.

Israel provides an excellent example of this type of shift. Since 1972, there have been no successful attacks on Israeli air traffic. In Israel, people are not subject to long security lines, aggressive pat-downs, or nude body scanners—unless you look like you don’t belong in Israel. Then people are.

This is not politically correct and would be much more difficult to pull off in a country that boasts itself a melting pot of ethnicities—what does an American look like? However, with guidelines, it could be done. It’s worth noting that 20 percent of Israel’s population is Arab. If this were our aim, with significant strategy and effort, federal measures could be specified, tweaked, then carried out as stringently as they are in Israel.

This subhead of this opinion in Haaretz plainly states, “While other democracies hesitate to resort to racial profiling, Israel takes the practice for granted.” The piece describes how some passengers can travel with small amounts of liquid while others can’t, based simply on how travelers look, speak, and describe their travel intentions.

“To Israelis, the practice of picking people out based on racial stereotypes is so self-evident, there isn’t even a Hebrew term for it,” the piece continues. “…While governments and citizens of other democracies are dealing with the question of whether they are prepared to live with the chance that their principles and freedoms could lead to a bomber actually managing to activate their hidden device, in Israel that decision has been made for us long ago.”

Have we also reached the point in America where terrorists have made that decision for us? Our existential threats are less severe, but growing all the time. Perhaps counterbalanced against the senseless frustration and lack of safety increase TSA’s procedures inflict on us, it’s time we demand the TSA make some significant changes in security protocol.

The Washington Post used anonymous sources to report last week that the FBI obtained a secret court order last summer to spy on U.S. citizen Carter Page, an unpaid and informal adviser to the Donald Trump campaign, as part of an investigation into links between Russia and the Trump campaign. CNN used anonymous sources to report this week that the infamous “golden showers” dossier was used as part of the justification to win approval to monitor the Trump associate.

These latest leaks of classified information appear to be in response to Sen. Charles Grassley’s inquiry to FBI Director James Comey on behalf of the Senate Judiciary Committee he chairs. Grassley noted a February 28 Washington Post report, which used anonymous sources to report the FBI had made plans to pay dossier author Christopher Steele to continue investigating Trump before the election.

Paying an opposition researcher to investigate the Republican nominee for president in the run-up to the election “raises further questions about the FBI’s independence from politics, as well as the Obama administration’s use of law enforcement and intelligence agencies for political ends,” Grassley wrote.

Grassley demanded that the FBI turn over all records relating to the agreement, interviews of Steele, information on any government officials outside the FBI discussing the agreement with Steele, information on how the FBI obtained the dossier, any official reports that used Steele-collected information, any indication the FBI used the information before verifying it, and various other information, including:

9. Has the FBI relied on or otherwise referenced the memos or any information in the memos in seeking a FISA warrant, other search warrant, or any other judicial process? Did the FBI rely on or otherwise reference the memos in relation to any National Security Letters? If so, please include copies of all relevant applications and other documents.

These latest leaks answer that question. And the leaks about what intelligence agencies were doing during the presidential campaign begin to answer questions about whether the U.S. government has hard evidence that the Trump campaign had foreknowledge of Russian meddling and coordinated with Russians about that meddling, or whether there was rampant abuse of power in stripping an innocent U.S. citizen of his right not to be surveilled by his own government.

Much of the media response has remained incurious about the latter question and inclined toward the former claim. “We just got a huge sign that the US intelligence community believes the Trump dossier is legitimate,” wrote one reporter in response to the latest leaks, citing a former CIA general counsel as saying unconfirmed information about a potential target would not be included in the application for Foreign Intelligence Surveillance Act (FISA) surveillance.

Leaks Contradict Recent Intelligence Agency Claims

But if information about Page from the dossier was confirmed by the FBI before seeking the surveillance, it contradicts what former Director of National Intelligence James Clapper said publicly and on the record when its existence came to light in January: “The [Intelligence Community] has not made any judgment that the information in this document is reliable, and we did not rely upon it in any way for our conclusions.”

Confirmation of the dossier’s allegations against Page would also contradict Clapper’s repeated claims that “we had no evidence of such collusion” between Trump and Russia. In an interview on “Meet the Press,” Chuck Todd asked him if the intelligence agencies’ report on Russia had gotten “to the bottom of this,” and Clapper responded, “It did — well, it got to the bottom of the evidence to the extent of the evidence we had at the time,” Clapper said. While Clapper has a history of not telling the truth, even under oath, he’d have little incentive to downplay evidence of Russia colluding with the Trump campaign.

Former acting CIA director and Hillary Clinton campaign surrogate Michael Morrell said, “On the question of the Trump campaign conspiring with the Russians here, there is smoke, but there is no fire, at all. … There’s no little campfire, there’s no little candle, there’s no spark. And there’s a lot of people looking for it.” He went on to note that Steele used intermediaries to gather information from Russian sources, and that he paid people for information.

“Then I asked myself, why did these guys provide this information, what was their motivation? And I subsequently learned that he paid them. That the intermediaries paid the sources and the intermediaries got the money from Chris. And that kind of worries me a little bit because if you’re paying somebody, particularly former [Russian Federal Security Service] officers, they are going to tell you truth and innuendo and rumor, and they’re going to call you up and say, ‘Hey, let’s have another meeting, I have more information for you,’ because they want to get paid some more,” Morrell said.

The Dossier’s Many Problems

Was the dossier used to secure a warrant against an American citizen in an opposing party’s campaign for president? Here are just a few problems with the dossier’s veracity and reliability.

• Basic facts are in error.

As Owen Matthews wrote in January, “[T]here are several places where the author seems weirdly ignorant of basic facts about Russia. He or she refers to Alpha Bank rather than Alfa, and seems to be under the impression that the suburb of Barvikha on the tony Rublevskoe highway is a closed government compound, instead of just an expensive vacation home area favored by the new rich. The author also misspells the name of Trump associate and Azeri real estate mogul Aras Agalarov, and reports his association with Trump as news in August 2016—when Agalarov publicly organized Trump’s visit to the Miss Universe pageant in 2013 and arranged a meeting with top Russian businessmen for Trump afterward, both of which were widely reported at the time.”

• Claims that are verifiably wrong.

Much of the report was vague or unverifiable. One of the few claims that could be easily checked turned out to be extremely wrong. Steele claimed that Trump lawyer Michael Cohen had met with Duma foreign affairs head Konstantin Kosachev in Prague “to clean up the mess left behind by western media revelations of…[former Trump campaign manager Paul] Manafort’s corrupt relationship with the former pro-Russian Yanukovych regime in Ukraine and Trump foreign policy advisor Carter Page’s secret meetings in Moscow with senior regime figures in July 2016.” The only problem was that Cohen had never been to Prague and Kosachev said he hadn’t been there in five years.

• Financially outlandish claims.

The dossier claimed Igor Sechen, who runs the Russian oil giant Rosneft and is a friend of Vladimir Putin, had a secret meeting with Page in which he offered Page a 19 percent stake in Rosneft in return for Trump lifting sanctions. That works out to $11 billion or so. The idea that Sechen would make this opening bid to an unpaid, informal advisor to a candidate observers thought was going to lose bigly, is ludicrous. For what it’s worth, Page has denied ever meeting Sechen, last year or any previous year. Page is the founder and managing partner of an investment fund and consulting firm specializing in the Russian and Central Asian oil and gas business.

• Sexually outlandish claims.

The most exciting claim in the dossier was that Trump had paid prostitutes to urinate on a bed used by President and Mrs. Obama in a Moscow hotel. The dossier alleged various other perversions that had been explicitly enabled by Russian officials, adding that a former top-level Russian intelligence officer “asserted that Trump’s unorthodox behavior in Russia over the years had provided the authorities there with enough embarrassing material on the now Republican presidential candidate to be able to blackmail him if they so wished.”

It’s not even that these reports were unverifiable, it’s that they show no understanding of Trump’s public image as a sexual pervert. In what way would learning about his infidelities or indiscretions be a blackmailing situation? Particularly since the coordination with Russian officials would mean Trump was aware of the supposedly compromising information.

• Claiming Russians had been cultivating, supporting, and assisting Trump for more than five years.

At the time the dossier claims Russians began cultivating him, Trump was a reality TV star who was just coming out of bankruptcy. Another part of the report claimed that the Kremlin had been feeding Trump information on Clinton and other opponents for “several years,” a bizarre thing for the Kremlin to do with someone who only announced his candidacy in June 2015.

• Contradictory information on business deals.

The dossier claimed Trump was working hard to meet with Russian business leaders but that “so far Trump has declined serious sweetheart real estate business deals offered him in Russia.”

• Questionable claims of collusion.

The report claimed that Trump and his team accepted a regular flow of intelligence on Democratic and other political rivals. Sure, but then why did they never use any of it?

• Claiming a communications official controlled a dossier of compromising information on Clinton

As Matthews notes, “Why would such a dossier be controlled by [Dmitry] Peskov, whose job is to talk to the press, when it must have originated with the FSB and/or FAPSI, the federal electronic surveillance service? Peskov is a Kremlin courtier, the charming public face of the regime, not a spy.”

• Claiming Manafort and Page’s views were bought.

The dossier claimed that Page and Manafort agreed to sideline Russian intervention in Ukraine and raise NATO defense commitments in exchange for the WikiLeaks operation. But Page and Manafort have publicly expressed these foreign policy views going back years. Page lived and worked in Russia for years, and is a vocal critic of anti-Russian foreign policy. Manafort worked in the Ukraine for Russian-allied political groups.

Using a document riddled with so many errors and logical flaws to justify state surveillance on a U.S. citizen is not a great look for intelligence agencies. To be sure, opposition research is always like this. Any political journalist can tell you stories about outlandish claims that they are pitched, only to find out the claims are made up in whole or part. But the idea that intelligence agencies were using such opposition research, paid for by opponents of Trump’s campaign, and considering paying the person who claimed to collect it, is something that should at least set off journalistic alarms about political use of intelligence agencies.

Media Must Ask What Justified the Warrant

The New York Times also used anonymous sources to report on the U.S. government’s surveillance of Page. The article claims “when [Page] became a foreign policy adviser to the Trump campaign last year and gave a Russia-friendly speech at a prestigious Moscow institute, it soon caught the bureau’s attention. That trip last July was a catalyst for the F.B.I. investigation into connections between Russia and President Trump’s campaign, according to current and former law enforcement and intelligence officials.”

If this is true that this was the catalyst, it is concerning. The Times article explains at great length how little a role Page had in the campaign and how far from central he was, to put it mildly. It notes that he worked in Russia and was critical of U.S. foreign policy toward Russia. At no point is anything illegal alleged. To be clear, since many in the media are not clear on this point, it is still legal in this country to be critical of U.S. foreign policy toward another country.

According to The Foreign Intelligence Surveillance Act of 1978, federal agents need to demonstrate probable cause to believe that the “target of the surveillance is a foreign power or agent of a foreign power.” Carter Page is a U.S. Naval Academy graduate, businessman, and academic who will tell anyone who will listen his views that NATO enlargement was a mistaken foreign policy, and that hostility to Russia is a bad strategy for the United States.

These things are not illegal or evidence of being an agent of the Russians. In fact, going to Moscow after being named in major media as a foreign policy advisor to the president to loudly proclaim a pro-Russian line critical of existing policy at a prominent university is not exactly top spycraft. Yes, it could be double-super-secret-spycraft, and perhaps the U.S. government, which has now been revealed to have spied on a U.S. citizen, has evidence to support such surveillance. Did the FBI go to the Foreign Intelligence Surveillance Court (FISC) after corroborating the claims of the dossier? Or did the agency go to the court and characterize the information as credible based on the fact its paid opposition researcher had been an MI6 spy?

Defenders of the FBI say that the FISC judge wouldn’t have issued warrant without strong corroborating evidence and that the courts reviewing applications are very strict. However, securing warrants from a judge does not appear to be as difficult as some claim. Some 38,365 applications for FISA surveillance were made through 2015. Courts denied only 12 requests since 1979. That’s a rejection rate of .03 percent.

Until evidence is provided, journalists who care about privacy and abuse of power should be asking tough questions of everyone involved. Despite a nearly year-long campaign of leaks and innuendo to tie Trump to Russia, nothing has been provided to support the claim of collusion. Until and unless any of the people making such claims produce actual evidence of Trump associates having knowledge of Russian actions beforehand, and coordinating the placement and timing of leaks for political effect, the proper focus of journalists should be on the rampant abuse of power in a political opponent being surveilled by his own government.

Reporters like to present themselves as advocates of civil liberties. Journalism awards were thrown around for work done exposing government surveillance of U.S. citizens leading up to the Church Committee report. Democracy dies in darkness, we’re told, but who is championing the right of individuals against the overweening central power of the surveillance state?

Again, maybe the U.S. government has every reason to be spying on Carter Page. But if he was spied on for having political views or associates at odds with the Obama administration, that’s a problem. Like-minded people favoring a change in U.S. foreign policy should not be illegal. That’s politics, and precisely why elections are held in a free country. Government resources, law enforcement, and surveillance powers simply shouldn’t be put to partisan use. If nothing comes of this nearly year-long investigation into a political campaign, accountability must be demanded.

For decades, Americans have forfeited their privacy rights for a false sense of safety. Broad, sweeping surveillance laws––such as, but certainly not limited to Section 702 of the FISA Amendments Act––have given the federal government carte blanche in the realm of surveillance. Thankfully, a recently introduced bipartisan Senate bill would restore some vital protections to Americans’ privacy.

The ECPA Modernization Act, introduced by Sens. Mike Lee (R-UT) and Patrick Leahy (D-VT), would update the Electronic Communications Privacy Act of 1986 (ECPA) to make it more relevant to the technologically advanced world in which we live. The original bill was conceived in a time when email and cell phone use were rare, with the goal of protecting oral, wire, and electronic communications from government surveillance. The bill was an update to the 1968 Federal Wiretap Act, which, much like the ECPA now, had become useless with time.

ECPA’s privacy protections remain stuck in that era, when companies would only archive emails for 180 days. After that time frame had lapsed, a user’s emails would disappear, thus ending the government’s ability to snoop archives. Servers have since made email archives essentially eternal, giving the government a goldmine of information to spy on.

Legislators at that time could not have foreseen surveillance tools, such as facial recognition technology, Internet dragnets, and cell site simulators, all of which have been deployed to trample privacy rights. While lawmakers may have had good intentions in 1986, their bill is useless in the modern era.

It’s 10 O’Clock. Yes, Government Knows Where You Are

The ECPA does nothing to address spy agency and police use of geolocation data to track the exact whereabouts of a person. That type of tracking has been used in startling ways recently. Earlier this year, Immigration and Customs Enforcement (ICE) used a Stingray cell site simulator to track down an illegal immigrant in Detroit. That was the first time ICE deployed this tool, which was originally designed for military and terror investigations. Police in New York have used the tool thousands of times, and the Electronic Frontier Foundation (EFF) reports it is repeatedly abused in non-terror investigations across the country.

The ECPA update would require a report from the Federal Communications Commission (FCC) and the Government Accountability Office (GAO) on the use of Stingrays for law enforcement and spying. Specifics of what these reports would entail aren’t yet known, but any study on abuse and overreach is certainly a step in the right direction.

Unfortunately, the new bill still gives the government a lot of wiggle room in circumventing warrants. If law enforcement determines a situation constitutes an emergency, officials can get away with not obtaining a warrant. And if acquiring geolocation data could help prevent serious injury or death to any individual, or stymie a threat to national security, law enforcement still has broad discretion.

Surveillance Is For Proven Criminals, Not Free Citizens

Still, Lee and Leahy’s update to ECPA would curtail some of these violations by putting stricter limitations on when the government can use geolocation data to track someone. The bill would require a government agency to obtain a warrant before acquiring live or stored geolocation data from a third party such as Verizon, AT&T, or Google. As Lee put it, “[Americans] don’t believe the government should be able to always know where you are just because you are carrying a cell phone.”

Lee’s point is an important one, but one that’s lost on the public at large, either because of apathy or fear. In the wake of Edward Snowden’s 2013 NSA leaks, most Americans began to oppose government spying programs. However, that data has shifted back in favor of the snoopers, with recent polling showing 62 percent are okay with government collecting phone records from millions of Americans. Thankfully, rights–including our Fourth Amendment rights–are not decided by majority rule.

Lee and Leahy’s bill also makes some good strides toward protecting email data. The bill would get rid of an ECPA provision that allows law enforcement and spy agencies to obtain archived email data, after 180 days, without a warrant. Instead, it would require a warrant based on actual probable cause before the government ever obtains email data from a third-party server.

This is a crucial upgrade to the ECPA. Currently, the outdated law largely allows government to access a treasure trove of archived emails. Additionally, amendments made to the bill under Title II of the PATRIOT Act and Section 702 of the FISA Amendments Act have made it alarmingly easier for government agents to access data stored by third parties. Thanks to the PATRIOT Act, spy agencies can obtain intimate details, including your name, address, and phone number, all without a warrant.

Under the new bill, not only must an agency show probable cause, it must also list the time frame of the email, the persons involved, the information that is sought, and the specific circumstances of the investigation. This type of specificity ensures that day-to-day conversations and other irrelevant communications aren’t allowed to be scooped up mid-investigation. This is especially important with the increased power of servers to hold records for longer than 180 days.

While the ECPA Modernization Act is by no means a cure-all for the erosion of privacy rights in America, it certainly would move the nation in the right direction. Putting a stricter onus on government officials to prove probable cause before vacuuming up your data would be a huge step towards protecting privacy and due process rights in the digital age.

The U.S. Supreme Court (SCOTUS) is set to hear several blockbuster cases this fall that they pushed off following the death of Justice Antonin Scalia, knowing the court would likely be deadlocked. They will hear a case involving whether government can search cell phone records, and the well-known case involving a rare blend of questions about free speech and free exercise of religion, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

SCOTUS is hearing another case today that’s not infamous but still important, as it involves the complex and often-misinterpreted Fourth Amendment: District of Columbia v. Wesby.

The case goes something like this: Nearly ten years ago a bunch of friends had a bangin’ party in a Washington DC neighborhood—except the owner of the home wasn’t there. As the party became raucous, police arrived and, although they found women scantily clad and offering “lap dances” to the smell of marijuana, nobody could determine whether these folks had actually been invited into the home. SCOTUS blog reports:

Some of the partygoers told the officers that they had been invited to the house, while others told the officers that they had received permission to be there from a woman whose name was either ‘Peaches’ or ‘Tasty.’ But ‘Peaches’ gave the officers conflicting stories about whether she had permission from the owner to use the house. When police officers eventually talked to the owner, he confirmed that he had not authorized anyone, including ‘Peaches,’ to be at his house.

(Surely this is the first SCOTUS case involving a woman named “Peaches.” If only Justice Scalia were alive to inject his incisive humor.)

The officers assumed the partygoers were trespassing and arrested based on that assumption. Even though they were right, the officers technically didn’t have that piece of information at the time of the arrest. So the partygoers later went to district court arguing police never had probable cause to arrest them. The court agreed and the police had to pay attorneys’ fees. The case has since worked its way up to the Supreme Court.

With partygoers insisting police didn’t have probable cause to arrest them and police claiming they did and that, anyway, the police can’t be sued (a.k.a. “qualified immunity”), this is a fascinating case involving the Fourth Amendment. That amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

SCOTUS blog concludes:

The partygoers may see the case as straightforward, but it’s not clear that the Supreme Court (at least so far) agrees. The justices considered the case at nine consecutive conferences before finally granting review. That kind of extended consideration often signals either that the court is preparing to summarily reverse (that is, reverse without briefing on the merits or oral argument) the lower court’s ruling or that a justice is dissenting from the denial of review. We likely never know what was going on behind the scenes, but we will learn a lot more about the justices’ current views after the oral argument.

With a new justice on the bench, Neil Gorsuch, it’s difficult to conjecture what the justices will rule on this unique case. Even if Scalia remained on the bench, this would have posed an interesting intersection for him on privacy rights and security issues.

Last November at the Federalist Society Convention in Washington DC, an annual conference for typically more “conservative” lawyers, the group honored Scalia’s legal legacy. One panel was dedicated to his views on national security law, an irony because he had written few opinions on the topic. However, the Fourth Amendment came up repeatedly.

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, was on the panel. She observed, “The Justice had a solicitude toward privacy rights. He was considered a friend to liberals and libertarians on privacy. In the Kyllo case he said the Fourth Amendment protected people’s privacy. He emerged as a champion of privacy rights. He might have been concerned about the NSA’s surveillance programs.”

She continued later, “In United States v. Jones he relied on the narrow ground that attaching GPS was an invasion of property. However, the Fourth Amendment doesn’t use the word ‘privacy.’ He also didn’t like squishy standards; he liked rules. It lends itself to results-driven analysis.”

It will be interesting to see how the new court rules on issues as important as privacy and probable cause.

Kyle Sammin cogently argues that the United States should implement a voluntary national identity system in the wake of the Equifax hacking. Debate about this issue has roiled for decades. Although numerous countries have a national identification system, Americans have long resisted the idea.

The Social Security number (SSN) has certainly expanded beyond its original purpose of serving as an account number for benefits, but policy-makers have repeatedly rejected calls to convert it into an identifier. The Clinton administration’s 1993 proposal of a “Health Security Card” never got off the ground, and even after the September 11, 2001 terrorist attacks, Congress made clear in creating the Department of Homeland Security that DHS was not authorized to create a national ID system.

The reason for this attitude is clear: Americans traditionally treasure their privacy, and anything that smacks of government surveillance and tracking has always been considered fundamentally un-American.

But the siren song of wondrous modern technology calls some to revisit the issue. Although Sammin acknowledges Americans’ suspicion of federal identity-tracking, he argues that SSNs, passports, and federal mandates on state drivers’ licenses (through the Real ID Act of 2005) already create federal involvement. He decries the “hodgepodge of barely functional documents issued by the federal government combined with federal coercion in how the states issue their own IDs.” The feds are already there, he argues, so we may as well accept it and implement policies to protect identities better than credit-reporting agencies do.

It’s Preposterous to Say the Feds Can Manage Data Better

At the outset, let’s dispose of the contention that the federal government can keep personal data secure. The 2015 breach of the Office of Personnel Management’s data system exposed sensitive data, including SSNs, of approximately 21.5 million people. Apparently the hackers successfully struck not once, but twice. OPM officials admitted that the data had not been encrypted or otherwise protected because the computers were too old.

That same year, hearings of the House Government Operations and Oversight Committee revealed the shocking absence of data security at the U.S. Department of Education, putting at risk highly sensitive information of, for example, individuals and families applying for student loans. In other words, the proposition that the federal government should be entrusted with even more information on citizens is a bit of a high-stakes gamble.

The types of information contained by this sophisticated new national ID card would inevitably go well beyond the nuts and bolts needed to establish identity. Sammin argues that credit-reporting companies already have citizens’ data, but their trove is limited to financial information. What he and the scarier data-mongers contemplate is much more than this, including biometric information. The recently created Indian “Aadhaar” system, which he praises, includes fingerprints and iris scans.

Mandatory Programs Often Start as Voluntary

The Indian system is worth a second look. Aadhaar began as a voluntary program designed to reduce fraud in government benefits programs, but according to a BBC report, “it has become virtually impossible to do anything financial without it – such as opening a bank account or filing a tax return.” It’s almost certain that any “voluntary” program in the United States would undergo the same evolution, just as Social Security numbers have.

To obtain the biometric information for Aadhaar, the government sucked up all data taken from individuals during their contacts with government agencies—schools, hospitals, childcare centers, and special camps. Indians thus have no choice about whether government will store and use their most personal data. Despite the government’s assurances that the system is secure, doubts skyrocketed in March 2017 when cricket star MS Dhoni’s Aadhaar number appeared on Twitter. So not only has the new system already transitioned from voluntary to mandatory, it has already been breached in at least one high-profile case.

What if biometric and other data from a national ID card is lost, hacked, or stolen? The Electronic Frontier Foundation says loss, theft, or damage occurs with up to 5 percent of all national ID cards every year. You can always change your credit-card number, but you can’t change your fingerprints or your iris. So the system instituted to safeguard your identity would create an identity nightmare once criminals access people’s most sensitive data.

The Electronic Frontier Foundation warns, “National ID cards and the databases behind them comprise the cornerstone of government surveillance systems that creates risks to privacy and anonymity.” Worse, “[t]he requirement to produce identity cards on demand habituates citizens into participating in their own surveillance and social control.”

In addition to coercion and security breaches, a troubling aspect of a national identification system is “mission creep”—the temptation of government busybodies to use data they vacuum up for more than identification purposes. Consider the work of the U.S. Commission on Evidence-based Policymaking (CEP). This commission was created to examine how the federal government might combine and use the citizen data collected by various agencies (USED, the Internal Revenue Service, Health and Human Services, etc.) to assess government programs. Throughout a year of hearings, CEP considered testimony from many witnesses, mainly those advocating extensive disclosure of data among agencies and researchers and tracking citizens for life by connecting their employment data to their education data, all in the name of “transparency.”

The Appetite for Your Personal Information Is Enormous

A witness from a predictive-analytics company (Booz Allen Hamilton, the former employer of Edward Snowden), pushed a centralized database drawing from multiple federal sources: “[E]ligibility and participation tracked by the Social Security Administration – when combined with taxpayer data and tax subsidies from the IRS, survey data from the U.S. Census Bureau, and data from other agencies, such as HHS and HUD – could exponentially . . . enhance our potential to draw insights that could not have been derived before.”

Although CEP’s final report didn’t go that far, it did recommend increasing researcher and government agency access to every agency’s data. Such enthusiasm for even more data-swapping among agencies isn’t considered “fringe” in the world of data enthusiasts, such as the Gates Foundation-funded Data Quality Campaign. The question isn’t whether the data linked to the ID card will be expanded, but when.

What might the feds eventually do with this sensitive data? With Booz Allen-type algorithms, maybe bureaucrats can predict how individuals or groups might behave (“Minority Report,” anyone?). Or now that the government essentially controls health care, a citizen’s biometric data, perhaps including genetic information, could allow the government to manage his or her health-care or lifestyle choices. Mr. Chubby, we expect to see your ID card scanned at the gym three times a week.

Expanded non-biometric data is a problem as well. Your school records show a suspension for fighting in the eighth grade? Too risky to let you buy a gun 20 years later.

Data Is Power, and Concentrated Power Corrupts

Sammin recognizes these dangers, warning that “[t]he federal government should be careful not to take the idea too far” and shouldn’t use the national ID as an internal passport system. But who seriously believes the feds will respect their constitutional bounds? Ask any governor, any physician, any teacher. The innocent confidence that the monster can be controlled is inconsistent with all of history, and with common sense.

Trust in federal bureaucrats not to misuse data is also unwarranted. Examples abound: the FBI illegally discloses sensitive intelligence data on a “staggering” scale; IRS persecutors have transmitted a taxpayer’s confidential data to other agencies to ramp up harassment based on her political beliefs; a Social Security Administration employee illegally accesses confidential records as part of a fraud scheme. Men are not angels, and data they they can access about other people to should be strictly limited.

But the most fundamental objection to a national ID system is this: By what authority does any government require innocent citizens to turn over even their biometric information for its use? In a free society, “efficiency” and “ability to do cool things with it,” or even “it’s for their own good,” are not killer arguments. These arguments are those of a police state.

It may be that a national ID card could help with voter ID, or illegal immigration, or law enforcement (to what degree is debatable). But a free society must live with limits and tradeoffs. A free society recognizes that some lines are not to be crossed, some areas of human life not to be probed or recorded. As the Fourth Amendment says, the “right of people to be secure in their persons, papers and property, shall not be infringed.”

Americans have seen too much erosion of their privacy and autonomy. A national ID card is a bridge too far.

On Wednesday, the Supreme Court will hear Carpenter v. United States, a case experts are calling the most important privacy issue before the court in a generation. At issue, according to SCOTUS blog, is “Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.”

Given that nine out of ten adults in America use some kind of cell phone, a number that has increased substantially since even a decade ago, this decision regarding electronic communications and Americans’ privacy and property rights will be landmark.

Here’s What Went Down

Between December 2010 and March 2011, a group of friends in the Detroit area robbed several RadioShack and T-Mobile stores in Michigan and Ohio. Ironically, they chose to steal cell phones (note: if you steal something, don’t steal an item that can be tracked). A month after the spree, four of the thieves were arrested, but not the mastermind of the scheme, Timothy Carpenter. A guilty compatriot turned over his phone, and FBI agents reviewed the calls he had made around the time he and his buddies were snatching cell phones.

Because of the Stored Communications Act, a judge granted an order for the FBI’s request to obtain “transactional records” from wireless carriers for multiple phone numbers for “[a]ll subscriber information, toll records and call detail records including listed and unlisted numbers dialed or otherwise transmitted to and from [the] target telephones […] as well as cell site information for the target telephones at call origination and at call termination for incoming and outgoing calls[.]” The judge didn’t grant a warrant, which would have required probable cause, and which law enforcement did not yet have.

This is where the infamous “Carpenter” comes in. From the records, law enforcement was able to figure out that one of the thieves had been in touch with Carpenter and, because of which cell phone towers Carpenter’s phone pinged, that he had been near the robberies. This led to Carpenter being arrested, convicted by a jury, and sentenced to 116 years in prison.

Does the Fourth Amendment Protect Data?

At first, it might not seem like there is an issue at here at all. The rub, however, lies in whether a judge can grant a warrantless search of cell phone records that reveal the phone’s (and thus user’s) whereabouts without violating the Fourth Amendment. Recall, the Fourth Amendment “protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]” Without the police search of digital data, it’s possible Carpenter may never have been linked to the robberies or arrested, or the police would have had to dig up better hard evidence to get him convicted.

As the Washington Post explained, “The government may only violate these rights upon issuance of a warrant. The Fourth Amendment protections include the public’s content of their communications; however, federal courts have long recognized that the Fourth Amendment does not protect the public from allowing the government to obtain the information necessary to get communications from point A to point B. For example, the government can obtain from a letter or package without a warrant the sender, receiver, originating and delivery addresses, package size, and weight; however, the government must obtain a warrant before opening the package or letter to obtain its contents.”

SCOTUS already has a precedent regarding phone communications. In Smith v. Maryland, the court held the government may not eavesdrop on a phone call but could obtain without a warrant the phone numbers the person dialed. In 1986, the Congress passed the Stored Communications Act, which governs the privacy of stored Internet communications.

The government is expected to rely upon these decisions to make its case that the warrantless search of Carpenter’s calls and cellphone’s whereabouts did not violate his Fourth Amendment rights. Carpenter will undoubtedly lean heavily on the Fourth Amendment itself and Riley v California to make the case that, as Lawfare said, “cell phones have become intertwined into the lives of American citizens and the vast data contained within a person’s phone potentially holds the sum of the individual’s private life, so the routing data contains much more than the ‘information necessary to get communications from point A to point B.’”

Here Are This Case’s Implications

The juxtaposition between the way the Fourth Amendment is written and how much technology has advanced since those times lies at the heart of legal stickiness here. What constitutes “houses, papers, and effects?” Are cell phones, the digital data within them, and information retrieved from the cell towers from which that data bounces and databases communications companies keep to provide their services? And what exactly is a “search?” Must it be physical trespassing, or could it be digital maneuvering through computer search or even a “hack?”

The late Justice Scalia was famously a Fourth Amendment originalist, as obvious in his dissent in Kyllo v United States, which held in a 5–4 decision that using thermal imaging was a “search” and required a warrant. But the advancement of time and technology makes cases like this unusually difficult to interpret. As Lawrence Rosenthal, a law school professor, wrote:

Justice Scalia’s Fourth Amendment originalism hangs by a thread […]Sometimes Justice Scalia himself seemed to acknowledge the difficulty of applying founding-era doctrine to contemporary contexts, as when, in 2014, he joined a unanimous Court in Riley v. California in holding that information in cellphones could not be retrieved without a warrant, despite the traditional rule that permitted police to search an arrestee’s person and effects incident to arrest.

Several reputable organizations have filed amicus (friend of the court) briefs in favor of Carpenter, including the Cato Institute, the Electronic Frontier Foundation, and the American Civil Liberties Union. They argue digital data is personal property.

The Founders intended for the Fourth Amendment to protect our personal property, and in 2017 that must mean our digital data too. https://t.co/WsQdgivD6a

— ACLU (@ACLU) November 20, 2017

Time will tell how the Supreme Court decides.

Magna Carta was one of the most important documents in the historical development of individual rights. So why did it include mundane things like the promise that constables wouldn’t take people’s corn? This week, the Supreme Court heard argument in Carpenter v. United States, a case dealing with a similarly ubiquitous item in our modern age: telecommunications data.

Like King John did with corn when rebel barons forced his hand in 1215, the Supreme Court should protect our telecom data from being wrongly seized. The court should recognize this data as the property of telecom users and require a warrant before it is seized.

To provide good-quality cellular service, telecom providers store data reflecting each phone’s connections to individual cell towers. This creates bushels of data about the minute-to-minute locations of every smartphone user. The question in Carpenter is whether government agents need a warrant to seize that data.

In the case, the government forced telecom providers to hand over data indicating where robbery suspects had been when a string of crimes occurred in the Detroit area. Under the federal Stored Communications Act, the government had to meet only a low “relevance” standard to require that the data be handed over. That is a much lower standard than the probable cause requirement for warrants under the Fourth Amendment. The data helped confirm the locations of their suspects and convict them.

That’s a fine result, but it should have required the government to overcome a higher legal hurdle. That’s because we all own our telecommunications data. They are our digital papers and effects. Government agents who want to access them should get a warrant.

The Government Wants to Get Your Data Whenever

Much like corn was in the Middle Ages, property rights in data today are not well respected or understood. Data and communications are too often and irregularly seized by government constables—to say nothing of highwaymen.

That was one of the problems Magna Carta addressed for ordinary physical items. “Corn” (the word then used for cereal grains), horses, carts, and wood all received special mention because government officials too often seized these things.

In Carpenter, the government argues that telecommunications data should be relatively free for the taking. The government argues people don’t have a “reasonable expectation of privacy” in such data, and thus no Fourth Amendment claim, because they have shared it with a third-party service provider. A case that supports that view is Smith v. Maryland, in which the Supreme Court approved the use of a pen register installed at police request (without a warrant) to track the numbers a suspect dialed.

The 1979 Smith decision did not examine why people might expect privacy in the numbers they dialed. It only discussed why they would not. And it did not rely on research into people’s actual privacy expectations.

Smith was probably wrongly decided in its own time. But today telecommunications data is much more voluminous and revealing. Correlations among the minute-to-minute locations of cell phone users can reveal their relationships and business dealings, their medical and psychological treatments, religious practice, political activities, and more. If it does not overrule Smith, the court should distinguish it based on the massive changes in data gathering and analysis since the 1970s.

The Supreme Court Should Secure Digital Property

But the Supreme Court can do one better. It should abandon the doctrine that produced Smith.

The Smith decision relied on confusing “reasonable expectation of privacy” doctrine. That court-invented rule says that a “search” occurs if government investigators upset expectations of privacy that they find to be reasonable. It is a long way from the Fourth Amendment’s text, which says nothing about privacy. It declares the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” The Fourth Amendment asks about the reasonableness of government agents’ actions, not the reasonableness of people wanting privacy.

Instead of improvising with confusing doctrine, the court should follow the language of the Constitution. It should first ask whether there has been a seizure or search of data. Both happened in Carpenter. To confirm the presence of suspects near a series of armed robberies, government agents forced two telecommunications providers to disgorge location data—a seizure—then processed it to draw out its meaning. That was a search.

It is a little less clear that digital materials are “papers” or “effects,” but much evidence from the time of the Framing suggests that the Fourth Amendment protects writings and records as such. That includes digital materials right along with things printed on flat sheets of cellulose.

Who Owns the Data You Generate?

That leaves a crucial question: Whose data is it? Can telecom users argue their interests in data about them? This is where property rights in data come in. The government makes much of the fact that telecom providers collect the data. The government says they are “business records”—not a legal term of art—so smartphone users should have no claim.

But the Terms of Service statements and privacy policies that telecom companies issue allocate most rights to control and use personal data to customers. Consistent with practice across digital services, these contracts give us the right to exclude others from personal data in all but closely defined circumstances. They respond to the privacy demands of consumers in the marketplace.

The right to exclude others is an essential property right. It is an important protection for privacy and liberty. The Supreme Court should recognize it with respect to digital data.

Telecommunications data differs from “corn” seized centuries ago, of course, because whoever had corn controlled it. But especially with digital materials, property rights can be subdivided. Telecom providers may possess telecommunications data, but the customer owns most rights to exclude, use, and sell it. Data held by telecom providers are still the customer’s constitutional papers.

Under the Supreme Court’s Fourth Amendment precedents, reasonableness is shown when a neutral magistrate permits a search or seizure by issuing a warrant. That closes out the issue: the government should have gotten a warrant.

The Carpenter case may not produce the next Magna Carta, but if property rights are to be respected, the Supreme Court should find that telecommunications data is owned in part by telecommunications providers and in part by cell phone users based on the contracts between them. To the extent digital data are the papers or effects of suspects, as defined in valid contracts, the government should not be able to require it to be handed over without a warrant.

It’s amazing how congressional Republicans have been singularly unable, since winning the White House and both houses of Congress, to advance any major legislative priorities for their voters, but still quite able to advance legislation that most Republican voters would oppose — if they learned about it.

Republican leaders are sponsoring three bills that would expand the U.S. surveillance state under the guise of improving education and government efficiency. A grassroots opposition letter lists and summarizes the bills, the second of which passed the House last week:

• “The College Transparency Act (CTA) (H.R. 2434), which would overturn the Higher Education Act’s ban on a federal student unit-record system and establish a system of lifelong tracking of individuals by the federal government; [sponsored by Republican Rep. Paul Mitchell of Michigan]
• “The Foundations for Evidence-Based Policymaking Act (FEPA) (H.R. 4174), which would create a ‘unified evidence-building plan’ for the entire federal government – in essence, a national database containing data from every federal agency on every citizen; [sponsored by House Speaker Paul Ryan and Democratic Sen. Patty Murray] and
• “The Student Privacy Protection Act (H.R. 3157), which would amend the Family Educational Rights and Privacy Act (FERPA), 20 USC § 1232g, without restoring the FERPA privacy protections that were gutted by regulatory fiat in 2012. [sponsored by Indiana GOP Rep. Todd Rokita]”

Government-expanding initiatives like these are not why voters have elected our current Congress or president. There is broad, bipartisan opposition to increased government surveillance of citizens, and for many excellent reasons. I list just a few of these below.

1. Personal Data Is Private Property

It has long been a core principle of American life that one of government’s main jobs is to secure citizens’ private property. People can’t just take our stuff without our explicit consent. Many state constitutions recognize this directly by stating that protecting private property is a fundamental purpose of government fit for a free people, and that their provisions are designed to secure it.

The Fourth Amendment to the Constitution is another prime example of our country’s design to restrain government and fellow citizens in this regard: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This amendment has been used to protect citizens from wiretapping, police ransacking of cars and homes, and collection of personal information such as DNA and blood. Along the same lines, the data we generate as we live in a digital society belongs, rightly, to the individuals who generate it. Those incomprehensible user agreements you sign to get a Gmail or Facebook account acknowledge this by getting at least your technical consent to ransack and sell your data in exchange for the financially costless use of their services.

Government data collection and sharing, especially as expanded in these bills, transgresses against this social compact. Massive government databases already share huge amounts of personal information without disclosing this sharing to the citizens who own it.  These bills would expand this infringement upon private property rights. Instead, Congress should do the opposite, and better secure our property rights by severely limiting the extent to which government agencies may collect and distribute our private information. My personal data is my property, not something for companies and governments to plunder for purposes I can’t control or even influence.

2. These Bills Kill Informed Consent, Which Kids Can’t Give

Another fundamental American right is to be ruled only by our consent. As the Declaration of Independence says, governments “deriv[e] their just powers from the consent of the governed.” We also socially recognize this principle as important when courts refuse, for example, to enforce contracts or agreements made under duress. Americans have a right to conduct their affairs according to their own free choices, not under coercion as in a mafia-style society.

Expanding government data collection and sharing transgresses this right because, again, already various agencies do not have to get explicit consent to distribute private information such as tax records, health conditions, test scores, and encounters with social services. These bills would expand their ability to share data without the explicit and specific consent of its owners.

Further, especially when we are talking education and health records, much of the data collection applies to minors, who in other arenas are legally prohibited from entering contracts because children are not mature enough to make good decisions. Children typically don’t have much life experience or neurological capacity to calculate the consequences of their actions, so they make poorer decisions than adults do.

It’s thus exploitation for people with no connection to a child and incentives against his interests to have the power to make decisions about his privacy and property. That’s why children in social services situations have court-appointed advocates. It’s also exploitation to make such decisions on the child’s behalf and without his legal guardians’ knowledge, let alone consent. Yet this is the situation our data-gathering is already in, and which Republicans plan to expand.

3. Informed Consent Is Key to Social Science Ethics

Some of the key purposes of this legislation is to secure and arrange data in order to conduct social science and other studies. According to psychological ethics and other social research protocols, I have a right to say whether I will be a test subject for someone’s research. These ethical considerations are even more strict for research conducted on children, since children are more vulnerable than adults are. These bills would further erode those important ethical standards by giving government more power to use citizens’ information for research conducted without their explicit consent, or in the case of children, even the capability of consent.

4. It’s Wrong to Exploit Americans Unable to Object

Other ethical standards are at play, especially the issue of power asymetry. Especially because our government is so large, it controls a great many things important to a great many people, including physical necessities such as food (SNAP), medical care (Medicaid, Medicare, drug and insurance regulations), housing (zoning laws, permits, Section 8 subsidies), and access to employment (permits, inspections, certifications). It also controls important social amenities such as education (both K-12 and college) and transportation (public transportation, licensing, and user fees). This gives it a huge power advantage over citizens, who in many cases are thus pressured to do things they dislike in order to have government-controlled goods.

This power differential is both implied and explicit. Many people cannot afford, for example, a private education for their children. Therefore if surveillance and manipulation as a result of that surveillance is bundled into public K-12 education and all college education thanks to Congress and the administrative state, these people will be coerced into accepting an exploitative situation that they would reject if they were truly free to choose.

It should go without saying that governments should not do this to their own citizens. This is a gross misuse of power that especially exploits those with the least political and financial resources.

5. Kids Do Stupid Things More Often

A main reason juvenile justice records are typically sealed is that a compassionate society wishes to protect citizens from lifelong consequences of young, foolish, and inexperienced actions. We recognize that young people are especially prone to stupidity, and we do not wish to punish them their entire lives for the immaturity they, by definition, cannot help.

Federal and state governments already transgress against this principle of justice by collecting sensitive data on young children in perpetuity, primarily through health and education records. The proposed bills will facilitate the increased sweep of such data into dossiers that will follow all Americans for life. Federal templates for data collection include entries, for example, for how many teeth a person has, school behavior records (including preschool), and whether some official thinks a student has ever “harassed” anyone.

Remember the kindergartener sent to detention for making a gun shape with his hand and saying “You’re dead”? On your record, kid. We’re watching you for other signs of “mental health issues” and “aggression.” Maybe it will play into your application for a gun license in 20 years. That may sound far-fetched until you learn that things like this are already happening.

As Cheri Kiesecker notes at Missouri Education Watchdog, “Recently, the Wall Street Journal reported that employers today are cherry-picking job applicants after hiring data brokers to determine who will be a risk for sick days, pregnancy, insurance costs.” Imagine how you would feel if your company knew you were pregnant before you decided to share that news because it was tracking your birth control purchases and searches inside their health insurance app. Again, it sounds crazy, but it’s right there in the Wall Street Journal. Federal college databases already include students’ child support payment history, net worth, retirement savings, parents’ Social Security numbers, number of siblings, parents’ child support payments, and more.

Michelle Malkin has documented how one data-tracking system used by several states records “information about [public preschoolers’] trips to the bathroom, his hand-washing habits, and his ability to pull up his pants.” I can hardly wait to see what potty training gets correlated with in these government algorithms, given its already-fraught history of psychological abuse.

6. The Bigger the Database, the Bigger the Bait

This one is simple. Data is bait because it’s a commodity. Where do you think Facebook gets its money?Trafficking customer data. The better the data, the more complete the profiles, the more it’s worth, both in financial and intel terms. The more it’s worth, the more hackers, corporate interests, and government agencies are going to want access to it. It’s kind of like creating the One Ring to Rule them All. Do that, and everyone wants it, most especially the people who have the worst plans for how to use it. So don’t do it.

7. Federal Data Security Is Awful

As the Parent Coalition for Student Privacy points out:

In recent months it has become clear that data held by post-secondary institutions and government agencies are under increased threat of breaches and cyberattacks. Even our “best protected” national data has been breached, including the hacking in recent years of the National Security Agency (NSA), Department of Defense (DoD), the Office of Personnel and Management (OPM), and the Securities and Exchange Commission (SEC). Specifically, the U.S. Department of Education was found to have weaknesses in four out of five security categories according to a 2015 security audit by the Inspector General’s Office.

Said Rachael Stickland, co-chair of the Parent Coalition for Student Privacy: ‘It’s inconceivable that Congress should entertain legislation that would increase federal collection of personal student data at a time when they have demonstrably proven they are unable to protect what data they already hold.’

8. Big Data Is Prone to Prejudice and Political Manipulation

Things that sound innocuous, such as birth weight (another entry in federal databases), in a Big Data world can be used as predictive modeling that research has found is likely to compound prejudice. Low birthweight is correlated with lower intelligence, for example, poorer health, and poorer nutrition. It is not too far-fetched to assume that once these data dossiers exist, at the very least insurance and mortgage companies will demand access to them for their actuarial calculations.

Not only is this in itself sketchy, the resulting backlash is likely to produce unintended consequences such as we saw in the 2008 financial crisis. The entire world economy tanked because of mortgages governments forced banks to issue to people who were bad bets but part of politically protected groups. Who knows what the unintended consequences might be of expanded opportunities for class warfare.

9. No Research or Experience Justifies Sweeping Data Collection on Citizens

Myriad high-quality public, private, charter, and home schools have proven government surveillance is utterly needless to produce self-governing, contributing adult citizens. Fifty years of increasing school data collection and using it to manipulate citizens’ behavior have not proven competitive to these data-free and data-secure alternatives. It has mainly produced a lot of wasted time and taxpayer money, plus a bit of research, most of it useless, that federal overlords typically ignore or pervert for political ends.

Electronic medial records are already their own massive boondoggle. Although medical research has shown better results, even though it is also rife with waste, fraud, and abuse, it is of an entirely different nature than sociological research, citizen surveillance, and economic manipulation of the kind being contemplated with these plans. We are not talking about running very specific, double-blind studies of some medical treatment. We’re talking vacuuming every datapoint bureaucrats can get their hands on, without specific consent, for vague purposes and limitless storage. It would be like if medical researchers perpetually conducted experiments of their choosing without subjects’ knowledge or consent and used the results to alter patients’ treatment opportunities and conditions also without their knowledge or consent. That would be insane, you say. Exactly.

We as yet have no evidence that national databases that follow individual citizens around for life will significantly improve on America’s historic successes with securing citizens’ freedom to manage their own affairs in free association with other citizens. The freedom to make one’s own decisions based on personal information and values, and control one’s own property and destiny, is a priceless treasure that U.S. citizens should not be forced to trade for K-12 public schooling, a college degree, or just simply being an American citizen. The cost of this trade is too high and the benefits too obscure and unproven.

10. Government Doesn’t Use Well the Data It Already Has

Data surveillance advocates, such as Tiffany Jones of The Education Trust, who testified to Congress on one of these bills, argue that “Before disaggregation of data was required in K-12, we knew anecdotally that schools were not educating all groups of students well. But we did not know just how significant the
inequities were, and we didn’t know which schools were making progress and which weren’t. That, unfortunately, is where we still are in higher education — especially in regard to low-income students.”

She’s referring to No Child Left Behind, which required K-12 public schools to publish information about specific “subgroups,” such as children labeled low-income, a racial minority, or special-needs. NCLB became law 16 years ago. In that time we have indeed gotten more details about the state of education for these children, which is abysmal. We knew that before the data collection, however, and did nothing about it.

Federal bureaucrats may have not been able to draw up an Excel sheet of all the low-performing schools in the country, but that doesn’t mean “we didn’t know” which schools were underperforming. Almost any person in those schools’ communities could have told you that. What Jones means by “we” is the people she assumes should run schools, which are obviously not local citizens paying local taxes and enrolling their kids in local schools. It’s people like her, who for some reason assume a divine right to tell the rest of us how we should run our lives.

After collecting NCLB data and much more for 15-plus years, “we know” more but still are doing nothing effective to address what it depicts. It is instead being used to make arguments like this, for increasing federal micromanagement despite a 50-year track record of that harming education quality.

11. Data Collection Is Not About Improving Education, But Increasing Federal Control

The real purpose of collecting data, as No Child Left Behind and its predecessors and children have proven, is to give federal bureaucrats excuses to meddle in local affairs and individual choices. This is what they have done with the information they’ve generated so far, and this is what they plan to do with more of it.

Data-driven pseudo-knowledge gives bureaucrats political power, which they have so far used to produce no significant gains from any federal education program in more than 50 years of increasing strangulation. Since federal surveillance for the purpose of micromanagement has been proven not only to not advance these important social imperative, but to actively retard them, we should obviously reduce federal data surveillance rather than increase it.

12. Americans Are Citizens, Not Cattle Or Widgets

One of the major intents of collecting education information is to integrate it into economic planning. You read that right: Republicans are helping accelerate the United States towards a planned economy, despite its well-known and horrific failures. (Shocker.) Political scientists call that “communism,” kids. The explicit goal is to have government decide what life choices citizens must — or will be manipulated to — make based on bureaucrats’ beliefs.

Democrats tend to like this because most Democrats support unlimited government, or socialism. Republicans (and Democrats) tend to like it because they tend towards fascism, or private associations that all must get government approval, which allows bureaucrats to control society. These are both two different flavors of a collectivist welfare state, and the existence of America’s welfare state provides the main pretext for this data control because government transfer payments grease the hinges for government surveillance.

But both of these views of American citizenship are wrong, because they treat citizens not as individuals  with the right to govern their own affairs, but wards of the state that the protected class may mold and subjugate as it pleases. In other countries, people’s rights are granted to them by the state. What the state gives, it can take away, and often does. In the United States, however, citizens’ natural rights are inherent, and the organic documents that created this country describe them as “inalienable” and bestowed by God.

In the United States, government is supposed to represent and function at the behest of the people, and solely for the protection of our few, enumerated, natural rights. Our government is “of the people, by the people, for the people.” We are the sovereigns, and government functions at our pleasure. It is supposed to function by our consent and be restrained by invoilable laws and principles that restrain bureaucrats’ plans for our lives. These include the natural rights to life, liberty, and property. National surveillance systems violate all of these.

As attorney Jane Robbins points out, “In a free society, the government is subordinate to the citizen. If it wants to use his data for something he didn’t agree to, it should first obtain his consent. [The Ryan-Murray bill] operates according to the contrary principle – that government is entitled to do whatever it wants with a citizen’s data and shouldn’t be hindered by his objection.”

In the last few years, members of Congress and their staff have been spied on, including during the Iran deal. Even the Senate committee tasked with oversight of the intelligence agencies was spied on during the Obama administration.

Journalists were spied on, too. Sharyl Attkisson, with CBS News at the time, had her computer hacked and sifted through while she was reporting on a story damaging to the Obama administration. Associated Press reporters were spied on, in an effort to frighten potential whistle-blowers. Fox News reporter James Rosen was spied on, and so were his parents.

More recently, Obama administration officials “unmasked” the intercepted communications of people in the Trump campaign who were talking with foreigners, then unknown members of the federal bureaucracy leaked these communications to the press.

A presidential campaign was spied on too. An unverified dossier, that nobody will stand by when under oath, was likely used to obtain a warrant in a secret court to spy on at least one member of the Trump campaign. The same bureaucracy that used the dossier to spy on a presidential campaign—the FBI—has, for months, refused to cooperate with the congressional committees tasked with keeping the FBI in check.

Americans of all stripes are surely asking: What is going on with our government?

The problem, fundamentally, is that Congress has given our intelligence agencies too much power, and refuses to check these agencies even when they flagrantly abuse the vast powers they have been granted. A case in point is the FISA Section 702 reauthorization vote, set to occur today in the House.

What Is FISA 702?

After the abuse of trust that occurred at America’s intelligence agencies in the 1960s and 1970s, Congress passed the Foreign Intelligence Surveillance Act, or FISA, in 1978. Its aim was to allow our government to spy on foreign powers, and agents of foreign powers here in America, without violating Americans’ Fourth Amendment rights. If an American were acting as an agent of a foreign power, the government had to go to a secret court—the FISA court—to obtain a warrant before spying on that American.

The current provision within FISA meant to allow snooping on foreigners, Section 702, was passed in 2008. This amendment grants our intelligence agencies powerful tools to conduct surveillance. Because the power 702 grants intelligence agencies expires, something written into the law to protect against abuse and allow Congress to have some oversight, Congress has only several weeks to reauthorize 702 before the program starts to lapse, which could threaten our national security.

That’s all well and good, yet intelligence bureaucracies have interpreted FISA 702 as it is currently to allow spying on Americans—or it has been routinely abused to do so. Because of this, conservatives and left-leaning civil-libertarians hoped to reform 702 before reauthorizing the program. But there is an effort in Congress, backed by GOP leadership, to not only reauthorize 702 without any meaningful reforms, but to also expand intelligence bureaucracies’ legal powers. A vote on this will occur today.

How Section 702 Is Used to Spy on Americans

Section 702 in theory only allows spying on foreigners. When a foreign subject of surveillance is talking to an American, the U.S. person’s end of the conversation is supposed to be redacted, or “masked,” when executive branch or intelligence officials examine the intelligence. But when an official needs to see the American’s side of the conversation, it can be “unmasked.” The problem is that this unmasking doesn’t require a warrant, and there aren’t (or weren’t) clear rules put in place about when an unmasking is appropriate.

This has been abused in just this last year. Michael Flynn, Trump’s national security advisor, called foreign officials after team Obama made several unprecedented foreign policy moves only days before the transition of power. Flynn was attempting to stop Obama’s team from radically altering U.S. policy towards Israel at the United Nations, and asking Russia to not retaliate against the sanctions that Obama slapped on.

Nothing Flynn said on the call was illegal or improper, but Flynn’s end of the conversation was unmasked then leaked to the press in order to catch Flynn in a lie. The leak—which was flagrantly illegal—caused Flynn, who happened to want to reform America’s intelligence bureaucracies, to be fired.

This isn’t the first time that Americans have had their communications with foreigners unmasked and leaked for political reasons. Other members of the Trump campaign had their conversations “unmasked.” Two Democrat members of Congress were spied on in the 2000s, and members of Congress were unmasked when they spoke with Israeli officials during the Iran nuclear deal negotiations.

Much larger abuses result from the National Security Agency’s upstream data collection. Basically, in the process of scooping up foreigners’ emails that run through our Internet infrastructure, the NSA incidentally collects quite a bit of emails and other data on ordinary Americans. The information is stored in a database, where it is supposed to be sifted through so the foreign target’s communications are kept, while the bulk of the data collected—Americans’ private communications and data—are deleted. In practice, this doesn’t happen and the NSA keeps all of the Internet data.

Big Brother Really Is Watching You, Without a Warrant

Worse, the NSA can then search through the upstream Internet data using an “identifier,” such as an email address or a phone number. NSA employees aren’t supposed to search for Americans’ names in that database, but they have routinely done so. Think of Google, but for looking at Americans’ communications.

This abuse was so flagrant that the normally pro-government FISA court blasted the Obama administration’s FBI and NSA just days before Obama was set to leave the White House. The court cited “an institutional lack of candor,” and called the violations a “very serious Fourth Amendment issue.” Here’s what National Review’s Andrew McCarthy had to say:

The rules from 2011 [to stop previous Fourth Amendment abuses] forward were simple: Do not use American identifiers. Yet NSA used them — not once or twice because some new technician didn’t know better. This violation of law was routine and extensive, known and concealed.” McCarthy also writes that, according to the FISA court, the violations were so widespread that by the time Obama left the White House, the scope of these violations had still not been determined.

Even when the NSA hasn’t violated the law per se, they have still been able to snoop on Americans without a warrant using these tools. First, let’s say that the FBI wanted to spy on Flynn, but can’t without a warrant. What they can do is spy on any foreigner Flynn talks to. This is called a “backdoor” search. You really want to spy on Flynn, but you say you are only spying on some guy in Germany. Same result.

Second, if you don’t search for an American target, the NSA has in the past searched for a foreign target’s “identifier,” but allowed the results to show any Americans’ communications that mention that foreign identifier. This is called an “about” search (currently, the NSA is not supposed to be doing “about” searches).

There are huge implications to this, an example of which just played out in the last administration. Here’s McCarthy again: “The NSA says it does not share raw upstream collection data with any other intelligence agency. But that data is refined into reports. To the extent the data collected has increased the number of Americans whose activities make it into reports, it has simultaneously increased the opportunities for unmasking American identities. Other reporting indicates that there was a significant uptick in unmasking incidents in the latter years of the Obama administration. More officials were given unmasking authority. At the same time, President Obama loosened restrictions to allow wider access to raw intelligence collection and wider dissemination of intelligence reports.”

Quite obviously, all this gives the intelligence bureaucracies an immense amount of power. If they don’t like a business deal, a politician, a policy, or a bill—say, one that significantly reduces their power—they can selectively leak information to destroy a reputation or torpedo the deal. When they don’t like who is in the White House, many in the media spin the leaking to be heroic, but this is a perversion. Really, unelected intelligence community officials are pulling the levers of power.

That’s not being “heroic” and shedding sunlight. That’s selectively leaking to create a narrative, and exert power over our elected officials. That’s the East German Stasi, not James Madison.

Proposals to Reform FISA 702

Lawmakers have certainly tried to look into these abuses of power. During a hearing on FISA 702 reauthorization, for example, Rep. Ted Poe (R-TX) asked FBI Director Chris Wray “how many times the FBI has searched FISA databases for information belonging to U.S. citizens.” Wray said he didn’t know, and committee chairman Bob Goodlatte (R-VA) was quick to note that the request was “reasonable” and “has been made in varying forms by this committee in a bipartisan way in the past, and we have not yet received the answers to those questions.” The Senate has made similar requests, to no avail.

Because of this lack of accountability, conservatives in Congress have been pushing FISA 702 reform. There are two primary reform proposals in Congress to reauthorize FISA 702, supported by different factions. Reason gives a good overview:

USA Liberty Act of 2017 (HR 3989)

• A creature of the House Judiciary Committee, this bill would create specific procedures to document requests for unmasking, and would require federal investigators to get a court order to access the content of the domestic communications when looking for evidence of a crime (and require that the search be directly related to the investigation). The bill contains exceptions to these rules for foreign intelligence, and emergencies.
• The bill doesn’t permanently end “about” searches, but its sister bill in the Senate, sponsored by Pat Leahy (D-VT) and Mike Lee (R-UT), does permanently ban “about” searches, and contains stronger language on the warrantless surveillance of Americans.
• The bill would sunset, and thus need to be reauthorized, in six years.

USA RIGHTS Act of 2017 (S.1997)

• A more civil-libertarian reform option, sponsored by senators Ron Wyden (D-OR) and Rand Paul (R-KY). Mike Lee (R-UT), Elizabeth Warren (D-MA), and Bernie Sanders (D-VT) have also signed on.
• Unlike the USA Liberty Act, this bill requires the feds to get a warrant before searching the info or communications of U.S. citizens or people on U.S. soil. There are exceptions to this, but only for espionage, terrorism, or other threats to the United States.
• The bill explicitly bans reverse targeting of Americans and “about” searches, and U.S. citizens are given “standing” to go to court if they believe they were snooped on illegally.

On the other end, aside from a clean reauthorization of FISA, establishment Republicans and Democrats are seeking to dramatically expand 702’s surveillance authority, and permanently authorize these powers. The Senate version of this is called the FISA Amendments Reauthorization Act of 2017 (S.2010).

Republican senators backing this bill include Tom Cotton (R-AR), Richard Burr (R-NC), James Risch (R-ID), Marco Rubio (R-FL), John Cornyn (R-TX), Lindsey Graham (R-SC), John Thune (R-SD), James Lankford (R-OK), Roy Blunt (R-MO), Susan Collins (R-ME), Pat Roberts (R-KS), David Perdue (R-GA), Thom Tillis (R-NC), and John McCain (R-AZ).

The Senate bill explicitly grants the use of unwarranted surveillance for a list of federal crimes beyond terror and espionage and allows “about” searches. The House version of this bill, being voted on today, requires the FBI to get a warrant when doing full criminal investigations, but this is “illusory” because at this point the FBI could have already accessed all applicable 702 data without a warrant. This bill also fails to end “about” searches of Americans’ communications.

No One Should Support the Intelligence Committee’s Bill

Just before year-end, GOP leadership tried to pass a 702 bill with permanent reauthorization and no reform. Fortunately, the likes of Paul and Wyden stymied an attempt to do so at the eleventh hour. So Congress had to punt, funding the government and extending FISA until late January.

Now, instead of trying to pass the reauthorization bill that contained reforms and has widespread bipartisan support—The USA Liberty Act—GOP leadership is again attempting to pass the House version of the Senate Intelligence Committee’s bill. Today’s vote on this bill, and the USA RIGHTS Act, will almost certainly result in the USA RIGHTS Act failing to pass. But the vote over the intelligence committee’s bill could be close.

Of course the intelligence agencies support the bill that expands their powers. They also cite a “tough on crime” line to justify forgoing warrants to investigate domestic crime. But here’s the problem: There’s a reason that the Constitution requires law enforcement or intelligence officials get a warrant before spying on Americans. It’s not because the founding fathers were soft on crime, but because our founders understood human nature. Unaccountable power corrupts and would be abused by even the best of us.

Reformers’ efforts are pretty clear, then: honor the Fourth Amendment. That means that the intelligence bureaucracies stop backdoor searches of Americans, and spy on foreigners all they want, but always get a warrant before they spy on Americans.

A couple of years ago, Director of National Intelligence James Clapper, while under oath, lied to Congress and said the intelligence agencies were not collecting and storing data from Americans’ phone records, emails, and Internet activity. The actions of Edward Snowden, no matter how imperfect, revealed that the government was in fact collecting all kinds of data on ordinary Americans.

Failure to Restrict Surveillance Fosters a Police State

Remember all the intelligence community abuses listed at the top of this article? These are the abuses that we know about, many of which were only made possible by Snowden’s imperfect disclosure. In other words, Congress didn’t even know about these programs.

Is it really wise to allow, and even encourage and enhance, unchecked federal government power? Rubio says laws that reform our intelligence agencies might as well have been lobbied for by ISIS. Is it really smart to give immense power to agencies that have routinely abused that power and ignore Congress, then essentially accuse anyone who wants to lessen those powers of abetting terrorists?

I spoke to Rep. Jason Lewis’ office (R-MN), and he said “national security is a vital responsibility of our government, but if the government doesn’t respect our basic civil liberties, we risk becoming a police state. In other words, we have to balance security with freedom. My first oath was to the Constitution, and our first freedoms are what make this country great. We have to protect them in order to protect the America we know and love.”

Lewis is exactly right. Those who choose security over liberty will have neither. What can you do? Get on the phone and call your member of Congress. Tell him or her that you would like to see meaningful FISA 702 reform, not the bill proposed by the House Intelligence Committee. Don’t donate money to campaigns or political parties if that money will go to candidates who vote to expand 702. Find specific candidates who champion civil liberties instead.

At first glance, it seems incredible that the U.S. Supreme Court would have to take a case that hinges, in part, on whether Ireland is part of the United States. But it has, with argument to be held next month, and the outcome of United States v. Microsoft has important implications for today’s digital world, in which data crosses borders at the speed of light and cloud computing is an everyday tool of American business.

The U.S. government is seeking access, through a search warrant, to electronic communications that Microsoft has stored in Ireland. Microsoft’s position is that users, not companies, own their data, so the government needs to follow the established process for pursuing foreign investigations. If the Supreme Court rules that instead that Internet service providers (ISPs) own all the data housed on their servers, and that borders don’t matter in these circumstances, then users would have serious concerns about online privacy.

Effectively, Ireland and everywhere else U.S. companies do business would be a part of the United States for law-enforcement purposes. So the case has tremendous implications for everyone who uses the Internet to store data—all of us.

Apply the Same Principles We Already Use

The U.S. Court of Appeals for the Second Circuit has already considered these issues and got the outcome right: U.S. search warrants simply cannot encompass electronic communications outside the United States any more than they can authorize physical searches of Dublin flats. U.S. laws only apply in the United States unless Congress has explicitly authorized extraterritorial application—and even then those foreign countries have a say in how that law is applied on that foreign ground. So if a U.S. search warrant cannot automatically apply to a physical object stored abroad, why should it apply to digital objects?

There are already solutions in place to resolve international conflicts like this, through existing treaties that provide mutual law-enforcement assistance between different jurisdictions. It’s not simply a matter of an American court ordering Europeans to comply. In this case, a loss for Microsoft would have serious implications for European citizens as well as Americans, leading to conflict between the United States and the European Union.

It’s clear why the Supreme Court took the case—to clear up confusion in murky jurisprudence. Beyond the particulars of the Microsoft case, however, there’s another solution: Congress must act.

Our Current Laws Are Horribly Outdated

The statute at issue here, the Electronic Communications Privacy Act, is more than 30 years old, going back to a time when email was the purvey of tech nerds and e-commerce only a distant dream. ECPA is neither precise enough nor flexible enough to address issues that arise from today’s technology, and from the migration of so much commerce online.

Congress can end the ambiguities in the law that have led different courts to different conclusions on a sometimes complex issue. A new statute would help both ISPs and law enforcement, and benefit everyone who uses electronic communications. The online world relies on trust. If consumers cannot trust that their data is secure and private, they will be far less likely to engage in e-commerce or even to send email. This would damage our economy and make the cost of storing electronic data far more expensive.

A fix like the proposed International Communications Privacy Act, which already has bipartisan cosponsors, would both solve the problems presented in this litigation and set up a strong foundation for the future. Consistent with the Fourth Amendment, it would require U.S. officials to obtain a warrant to obtain data stored with electronic communications-service providers and require providers receiving the warrant to comply with it as with search warrants of other types.

Specifically with respect to the issue in the Microsoft case, it would require that certain “qualifying” foreign countries receive notice of a warrant application and have the chance to object to it on the ground that the warrant would violate the laws of the host country. If the country objects, the U.S. court considering the warrant then analyzes the issue using a multi-factor test, including the interests of both the United States and the foreign country, the location of the alleged offense, the relevance of the data concerned to the investigation, and the ability for U.S. law enforcement to get the data in other ways.

We Need This Kind of Clarity

Not every country would qualify for this treatment: This analysis would only apply to countries that both meet privacy and human rights standards and cooperate with U.S. law enforcement in obtaining electronic data. Whether ICPA or some other vehicle, that’s the sort of thing that we need for the digital age.

This kind of clarity in the law, through a statute enacted by Congress, would clean up the confusion about the limits of privacy in electronic communications, whether stored domestically or abroad. It would benefit law enforcement, ISPs, and those who store electronic communications in the cloud.

Visit Ireland, and you’ll see many American flags welcoming travelers. But even the most exuberant Hibernophiles recognize that the Emerald Isle isn’t the 51st state, so the outcome in this case should be clear.  The need for Congress to act is equally paramount. Our elected representatives looked to the future and acted in 1986 to address a new world of electronic communications. It’s time for them to do so again in the era of cloud computing.

Ilya Shapiro filed a brief supporting Microsoft in United States v. Microsoft.

Congressional Democrats are ramping up pressure on Big Tech companies such as Google, Facebook, and Amazon, making 2018 a potential regulatory battleground. A briefing organized by Sen. Mark Warner (D-VA) last month lambasted the supposedly unethical behavior of the giants in Silicon Valley. Regulating online companies, however, is not an easy task.

If regulation is not carefully constructed, it could reduce the quality of service consumers have come to expect. Standard policy tools such as antitrust policy are likely to be ineffective due to the nature of online competition. And direct regulation would burden startups more than incumbents.

Worries about the growing market dominance of large tech companies are not unwarranted, though writing legislation that is beneficial to the public has becoming increasingly difficult, as online companies do not directly compete in the same way as conventional firms. The market power held by online firms is mostly due to the amount of data these companies collect. This enables network effects, a type of externality in which the value of using the site increases the more data it has.

Whenever a new person joins Facebook, the platform becomes more valuable to all their friends, encouraging more use, and more data is subsequently collected. The more you search with Google, the more it gets to understand your search patterns, and the better it is able to tailor the results of similar demographics, increasing the data it collects.

These network effects make it harder to switch to a new platform that offers a similar service, as the quality that these sites offer improves with use, so someone would necessarily have a worse experience when moving to a new competitor’s site. When you leave, these sites also keep your data, meaning that they continue to benefit, while you lack the ability to port this information to their competitors.

Antitrust measures are unlikely to do anything to reduce the benefits of these network effects. The scrutiny over the pending AT&T acquisition of Time Warner is being supported by those, such as the Open Markets Institute, who desire more stringent antitrust, as this could limit the power of tech companies to purchase smaller firms in different markets. By doing so they hope to end the buying sprees of the Big 5: Alphabet (Google’s parent company), Apple, Microsoft, Amazon and Facebook.

None of this, however, would do anything to reduce the dominance of these companies, but may instead starve startups of the resources they need to innovate. Preventing vertical mergers will not increase online competition.

Other regulations discussed in the briefing included intensified disclosure rules on ads, making it harder to anonymously buy ad space online, and a reduced liability shield, meaning that companies such as Facebook would be liable for the content posted by their users. This would reduce the freedom of companies to innovate online, adding paranoia about what their users might do, and generally restrict online freedom. These regulations intend to combat issues such as fake news and Russian influence over US politics, but are completely unnecessary and likely harmful.

Twitter and Facebook have already been making their content guidelines stricter in a voluntary move to combat the issue of Russian bots and fake news. Facebook has tried and failed to change its policies to combat the spread of myriad “satire” sites that confound and confuse users, leading it to invest in academic research to understand the problem. Forcing all platforms to adopt the same policy on content would get rid of this learning process, committing websites to the tools that Congress mandates. This would simply provide larger companies protection from competition, by making it harder for a new social media site with more innovative guidelines to exist and poach users from the old guard.

Recently, Forbes declared fake news a competition problem, since Facebook has become the main vehicle by which young people access news, which grants the site’s algorithms significant power to influence public opinion. These algorithms — which feed content optimized to the user’s tastes based on the totality of their browsing history — have exacerbated the online world’s echo chamber problem, with people not exposed to any dissenting opinions.

Legislation that makes market access for new competitors more difficult, such as increased liability for user content, may actually increase the dominance of incumbents. This is the economically expected result, and given the close relationship Google had with the Obama White House, might even be the intended one.

Google lobbyists visited the White House more than any other major firm, with this revolving door questioning the degree to which legislation has been written as favorable to its market dominance. This is not a minor issue, as any major tech legislation that is more difficult for smaller companies to comply with relative to large ones will squeeze out competition, exacerbating the network effects that online firms enjoy.

One of the most innovative policy solutions to the issue of network effects and low competition among online firms has been suggested by Luigi Zingales and Guy Rolnik of the Chicago Booth School of Business. They propose that a legal definition of digital property should be created, allowing users to own their social graph. This would allow all the individual user data inputted into a company to be owned by that user, meaning that if they wanted to leave a social media site such as Facebook and move to a newly introduced alternative, their social graph would allow them to transfer that data from Facebook and their servers.

Making firms more accountable to their users in the way it uses their data would give the users greater power to influence the firm’s actions, and to switch to competitors. This, and other creative measures, might significantly lower the barriers to entry for new platform firms, and would reduce the market power of larger tech companies.

President Trump’s Twitter habits have been the subject of controversy since he became a candidate for president in 2015. He used the platform to communicate to the people without the intermediation of reporters, which create new opportunities to reach voters directly and at low cost. His free-wheeling style also gave rise to continual controversy as he tweeted (or retweeted) things that would have destroyed the electoral hopes of any normal candidate.

There have been a lot of complaints, but recently some people literally made a federal case out of it, suing Trump because he blocked them. It sounds like a joke, but the laughter stopped when a federal judge ruled Wednesday that Trump’s actions violated the First Amendment and declared that the practice must cease.

The order was written by Judge Naomi Reice Buchwald of the United States District Court for the Southern District of New York. Buchwald, a 1999 Clinton appointee who took senior status in 2012 blazed a new trail in First Amendment jurisprudence in her opinion (found here). Unfortunately, that trail is a dead end that only takes us farther from any ordinary understanding of what the freedom of speech is and whom it protects.

The plaintiffs, which include a public interest group and seven individuals the president has blocked, claimed that Twitter was a public forum, one from which the president has unilaterally excluded them based on their political beliefs (namely, their criticism of him). Already this requires some creativity no matter which way the ruling goes because most forums discussed in First Amendment terms are physical places. But the Constitution is one of broad principles, and analogies may be made. To call an online forum the equivalent of an actual forum, which was literally a public square in Roman times, is not so much of a stretch.

The mental acrobatics come in where the First Amendment applies to public forums because that Amendment, of course, does not restrict private limits on speech or assembly. It is not enough that Twitter be some kind of virtual gathering space, which it certainly is; it must be a public gathering space. In terms of the precedents relevant to this case, that means a place that is, in Judge Buchwald’s summation “owned or controlled by the government.”

There is a lot of weight resting on that word “or.” Clearly, Twitter is not owned by the government. There is hardly even a decent argument to say that the @realDonaldTrump account is owned by the government, any more than the President’s clothes, books, or other personal property is. All presidents own things in their individual capacity, and that ownership does not pass to the government for the four or eight years in which they are employed in Washington.

But is it controlled by the government? The three people with access to the account (Trump, Dan Scavino, and Sarah Huckabee Sanders) are all government employees. But not everything a federal government employee touches comes under the control of Uncle Sam. Federal employees drive to work in privately owned cars and live in privately owned houses. Even things they use at work, like the clothes they are wearing, do not pass into the public domain. Some government employees have even been known to keep work e-mails on a privately owned server. And even though Scavino and Sanders use the account as a part of their duties, that is little different from a presidential valet picking out the President’s clothes, or the Secret Service staying at a president or vice president’s private home.

This seems all the more obvious when the White House does have a publicly owned account, @POTUS, which passes from president to president. Personal accounts, like @realDonaldTrump or @BarackObama, stay with the person who owns them. Both of those accounts tweeted about things related to the government. And both, like all communications by a president, are subject to the Federal Records Act under the changes to that law passed in 2014, even though they are private accounts. If Trump’s private account was nationalized, it was probably news to him. Knowing Trump, he may ask for retroactive compensation.

Much of Judge Buchwald’s decision hangs on that tenuous definition of control, but the precedents she cites are not exactly on point. In Cornelius v. NAACP (1985) and in Lehman v. City of Shaker Heights (1974), the forums to which plaintiffs sought access were, respectively, a charitable fundraising campaign in federal offices and advertising space on the side of city buses. These were both things to which the public at large had some access, but they were also located physically in government-owned and controlled spaces. The fundraising campaign in Cornelius was not a government project, but it was initiated by President Eisenhower through an executive order. The advertising on city buses may have been open to all market participants within certain guidelines, but it was physical space on government-owned vehicles.

Twitter is not that. Twitter is a private company, free of government ownership or control. It allows any user, even an anonymous user, to create an account, but it imposes its own rules. That is Twitter’s right because it owns the platform. Users who violate its rules and conditions may have their accounts locked or deleted. Twitter also makes certain tools available to its users, including the right to block other users from interacting with them. All of these things are the acts of a private company, not something taking place on government property.

As times and technology change, the Constitution must be interpreted to apply to the new facts. Just as the Fourth Amendment was held to prohibit warrantless searches of cell phones, the First Amendment applies to various segments of the internet. But the analogies have to make sense. A cell phone is a lot like personal papers: both are stores of private information. But is Twitter anything like an ad on a city bus or a charitable solicitation in a federal office building?

Maybe if Twitter had been started by the United States Postal Service, the analogy would ring true. Maybe, even, if social media platforms ever come to be regulated like electric and gas utilities, a quasi-governmental status might make sense. But neither of those things are the facts in this case. The closest analogy of a private Twitter account is not to a city bus or a federal building, but to a privately owned bulletin board. Forcing that square peg into the round hole makes the ruling hard to figure.

So why do it? This case is the latest in a line of many that involve lawsuits as politics by other means. By claiming that Trump is so very different, the plaintiffs in these cases imagine an “emergency” that clouds their judgment and convinces them to make arguments they would never have otherwise made. It sometimes convinces judges to agree with them.

Consider the travel ban cases, where Trump’s words on the campaign trail were held to impute some animus to a ban that changed it from constitutional to unconstitutional through the bizarre legal alchemy of Trump Derangement Syndrome. Or the Emoluments cases, where plaintiffs insist that if representatives of a foreign government rent a room in a Trump hotel, it somehow violates the Constitution. These are laughable legal theories, but when Trump is president, a lot of people pretend to take them seriously.

The Twitter case is less obviously wrong than those, but it is wrong for the same reason. Elites discomfited by the rise of Trump are using any arrow in their quiver, even dull projectiles like lawsuits against Twitter bans, to take a shot at the president. If Hillary Clinton were president and she blocked some Twitter troll who posted hateful words in reply to her post (and this happens on nearly everything she posts) no one would say a word. They would insist that Madam President had the right to not associate herself with such cretins and would likely scold Twitter itself for not blocking them preemptively.

If a normal president had done it, it would have been thought normal. But we do not live in normal times, politically, and when our abnormal president does anything, normal or now, the legal brickbats start flying. This is one more of the same, and will hopefully be deflected by the appeals courts before it tears a new hole in the Constitution.

On Friday, the Supreme Court held in a 5-4 decision in Carpenter v. United States that the government conducts a “search” within the meaning of the Fourth Amendment when it acquires a person’s cell-site records from third-party wireless providers.

For the last year, legal commentators have promoted the Carpenter case as one of the “biggies” from this year’s term. The court’s opinion, which represents a landmark shift in Fourth Amendment jurisprudence, is that, but it is so much more. The Carpenter decision perfectly illustrates the public and the press’ failure to appreciate the proper role of the courts in interpreting the Constitution.

Sadly, the reasoning of the five-justice majority is no better. Here’s why.

How This Case Arose In the First Place

First, though, the facts. In 2011, police arrested four men suspected of robbing several Radio Shack and T-Mobile stores in Detroit. One confessed, telling officers that a crew of 15 different men had robbed a half-a-dozen stores in Michigan and Ohio over a four-month period. The suspect named names and provided police the cell phone numbers of the other robbers, including the defendant, Timothy Carpenter.

Police then obtained a court order under the Stored Communications Act requiring Metro PCS and Sprint, Carpenter’s wireless providers, to provide the government Carpenter’s cell-site records for the months the robberies occurred.

“Cell sites” are the radio antennas used to obtain a signal. “Each time a phone connects to a cell site, it generates a time-stamped record known as cell-site location information, CSLI,” which wireless carriers store for up to five years. That information allowed the government to map the location of Carpenter’s phone—and presumably Carpenter. This placed him “right where [four of the charged robberies were] at the exact time of the robbery.” Over Carpenter’s objection, the government presented that evidence to a jury, which convicted him.

Carpenter appealed his conviction, arguing the government violated his Fourth Amendment rights by obtaining the cell-site evidence without a warrant supported by probable cause. The Sixth Circuit rejected Carpenter’s argument. Carpenter sought review in the Supreme Court, which agreed to hear his case.

In Friday’s split decision, the justices reversed the lower courts and held that to obtain historic cell-site information from third-party providers, the government must obtain a warrant, supported by probable cause. This because acquiring the cell-site data is a “search” within the Fourth Amendment. Chief Justice John Roberts authored the majority opinion and was joined by the four left-leaning justices, while justices Anthony Kennedy, Samuel Alito, Clarence Thomas, and Neil Gorsuch all filed separate dissenting opinions.

What the Supers Said About the Case

In his majority opinion, Roberts concluded that obtaining cell-site information from third-party carriers constituted a “search” within the meaning of the Fourth Amendment because “an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.”

In reaching this conclusion, the majority refused to apply the controlling precedent of United States v. Miller and United States v. Smith. Those cases held that a person had no expectation of privacy—and thus no Fourth Amendment interest—in records “voluntarily turned over to third parties.”

In Miller, the information consisted of financial records held by a bank, while Smith concerned the records of the dialed telephone numbers conveyed to a telephone company. The majority reasoned that cell-site information is different in kind and deserves constitutional protection. However, the majority also purported to limit its holding to historic cell-site records requested for more than six days, and stressed that it was not addressing other collection techniques such as real-time cell-site data or “‘tower dumps’ (a download of information on all the devices)” and that foreign affairs, national security, or other exigent circumstances such as a kidnapping, may justify a warrantless “search” of cell-site data.

All four dissenting opinions made clear that the Supreme Court’s Carpenter opinion contravened well-established precedent. “This case involves new technology, but the Court’s stark departure from relevant Fourth Amendment precedents and principles is, in my submission, unnecessary and incorrect,” Kennedy wrote. Noting that “[t]he Court has twice held that individuals have no Fourth Amendment interests in business records which are possessed, owned, and controlled by a third party,” Kennedy stressed that “[a]dherence to this Court’s longstanding precedents and analytic framework would have been the proper and prudent way to resolve this case.”

In addition to ignoring controlling precedent, the dissenting justices also stressed that the majority’s opinion was untethered from the text and original meaning of the Fourth Amendment, which protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “Treating an order to produce [records] like an actual search, as today’s decision does is revolutionary. It violates both the original understanding of the Fourth Amendment and more than a century of Supreme Court precedent,” Alito wrote.

This Is a Political Decision, Not a Legal Decision

Why, then, did the majority hold as it did? The dissents answer this question as well: “The desire to make a statement about privacy in the digital age,” Alito wrote of the majority opinion’s rationale, “does not justify the consequences that today’s decision is likely to produce.”

I must admit, as a matter of policy, I like Roberts’ statement about privacy and find the government’s ability to use cell-site records to track my every movement unsettling. But, as a matter of constitutional jurisprudence and legal analysis, the majority opinion is utterly unconvincing and sidesteps the difficult questions by summarily pronouncing the acquisition of cell-site information a “search” of Carpenter’s “persons, houses, papers, and effects,” within the meaning of the Fourth Amendment. The majority seems to reach this conclusion based on no better reason than that the public doesn’t like it.

But our constitutional system has a remedy for laws the people don’t like: change it legislatively. The Carpenter case involved a straightforward application of the Stored Communications Act, wherein, as Kennedy noted, “Congress weighed the privacy interests at stake and imposed a judicial check to prevent executive overreach.” “The Court should be wary of upsetting that legislative balance and erecting constitutional barriers that foreclose further legislative instructions,” he added.

Alito likewise stressed that “[l]egislation is much preferable to the development of an entirely new body of Fourth Amendment caselaw for many reasons, including the enormous complexity of the subject, the needs to respond to rapidly changing technology, and the Fourth Amendment’s limited scope.” Gorsuch agreed, writing: “When judges abandon legal judgment for political will we not only risk decisions where ‘reasonable expectations of privacy’ come to bear ‘an uncanny resemblance to those expectations of privacy’ shared by Members of this Court.”

Unfortunately, the majority’s approach in Carpenter is emblematic of the approach non-originalist justices have long taken in all areas of constitutional law: If it is a bad law, it is unconstitutional; if it is a societal good, it is a constitutional right. Another lesson of Carpenter: Chief Justice Roberts is no originalist.

While Brett Kavanaugh’s nomination to the Supreme Court has been warmly received on the Right, libertarians haven’t been uniformly thrilled. The night of the announcement, Rep. Justin Amash (R-MI) tweeted that it was a “[d]isappointing pick, particularly with respect to his #4thAmendment record,” also mentioning “government surveillance” as an area where Americans can’t afford a “rubber stamp.”

A few days later, my Cato Institute colleague Matthew Feeney did a critical dive into Klayman v. Obama, where the U.S. Court of Appeals for the DC Circuit rejected on standing grounds a 2015 challenge to the National Security Agency’s telephony-metadata collection. Kavanaugh wrote separately to say the program passed constitutional muster regardless. Reason’s Jacob Sullum similarly identified Kavanaugh’s “Fourth Amendment blind spot” (while lauding other aspects of his jurisprudence).

But should this be that big a worry? Given that the bulk of Kavanaugh’s legal opinions, as well as his speeches and academic writings, apply constitutional structure and push back on the administrative state—the bread-and-butter of the DC Circuit’s docket—should we really extrapolate from one squib of a concurring opinion to make Kavanaugh out to be some knee-jerk statist? After all, he isn’t some reflexive pro-government judge like Merrick Garland.

Let’s start with Klayman, which is without doubt Kavanaugh’s worst case from a civil-libertarian perspective. Kavanaugh wrote that the NSA’s suspicion-less collection of metadata is “entirely consistent” with the Fourth Amendment and “fits comfortably within the Supreme Court precedents applying the special needs doctrine.” (The “special needs” doctrine relates to government actions beyond normal law enforcement practice, such as at borders or drunk-driving roadblocks.)

The problem is that the NSA’s bulk telephony collection was not the kind of limited search connected to an isolated government interest—and the Privacy and Civil Liberties Oversight Board’s (PCLOB) 2014 report found that the program was not critical to the ongoing War on Terror. So even on the government’s own terms, Kavanaugh is on thin ice.

But this was a two-page opinion as part of an emergency appeal, and one that has likely been superseded by Carpenter v. United States, where the Supreme Court this past term ruled that police need a warrant to access cellphone location data. That is, the “third-party doctrine,” whereby we lose constitutional protection for information that we turn over to someone else, works differently in the digital age.

As the PCLOB’s former executive director recently wrote, under Carpenter, “the third-party doctrine does not extend to the type of collection conducted under the [program at issue in Klayman], and that program would violate the Fourth Amendment. The bulk collection of call detail records . . . creates the same privacy risks as the cell site location information that is protected by the Fourth Amendment under Carpenter.”

Based on Kavanaugh’s body of work, one can predict that he will be receptive to the kinds of constitutional protections that Chief Justice John Roberts (for the majority) and Justice Neil Gorsuch (in nominal dissent) asserted in Carpenter. For one thing, look at Kavanaugh’s writings on national security. In a 2009 law review article, he wrote that “constitutional text makes clear that the President does not enjoy unilateral authority with respect to all incidents of war. The Constitution gives the Congress not only the power to declare war . . . but also the power to raise armies, to fund wars and armies, and to regulate captures, among other powers.”

Accordingly, Kavanaugh has both rejected executive supremacy in favor of judicial review and praised Justice Antonin Scalia’s dissent in Hamdi v. Rumsfeld (2004), which argued that the military can’t detain U.S. citizens absent a congressional suspension of habeas corpus. Simply put, Kavanaugh takes an originalist and textualist approach to the powers asserted and statutes at issue, rather than blindly deferring to the executive as many judges might.

Even more importantly, because most judges (rightly) distinguish the power that government officials have when acting out of a concern for national security from run-of-the-mill law enforcement, Kavanaugh has displayed a strong, if limited, Fourth Amendment record. Most notably, in Jones v. United States (2010), he explained in dissent that the Fourth Amendment protects property and privacy interests in the context of the government’s physical intrusion on a defendant’s car to install a GPS device. Kavanaugh’s reasoning was vindicated two years later when Justice Scalia adopted his approach for a Supreme Court majority.

In a speech at George Mason University Law School in June 2016—before its formal renaming after the departed Scalia—Kavanaugh spoke with great respect about the rights of criminal defendants, arguing that Scalia was “the most vocal defenders of the Fourth Amendment’s guarantee against unreasonable searches and seizures”—particularly highlighting his dissent in Maryland v. King (2013), in which the Supreme Court upheld procedural DNA swabs of arrestees.

Kavanaugh then lauded Scalia’s role as the court’s “most tireless advocate for the right to trial by jury [under the Sixth Amendment].” Accordingly, in United States v. Moore (2011), Kavanaugh found that a criminal defendant’s Confrontation Clause rights had been violated when the government introduced Drug Enforcement Agency reports at trial without allowing the defendant to confront the report’s author. In United States v. Nwoye (2016), he reversed the denial of a defendant’s ineffective-assistance-of-counsel claim in a case where her lawyer had failed to present expert testimony on battered-woman syndrome.

Kavanaugh has also been a leading advocate of interpreting statutes to incorporate robust mens rea requirements, protecting individuals from criminal sanction unless the government establishes a “guilty mind.” See for example his dissent in United States v. Burwell (2012), in which he argued that a defendant could not face a mandatory 30-year sentence for carrying a machine gun during a crime because the government had not proven that he knew the weapon to be a machine gun. Or his concurrence in United States v. Williams (2016), where he commended a majority opinion that reversed the conviction of a gang member involved in a hazing ritual “to underscore the critical importance of accurate instructions to the jury on mens rea requirements.”

So too in white-collar cases, where regulatory “crimes” have ballooned in recent years. In Lorenzo v. SEC (2017), Kavanaugh dissented from a decision upholding the Securities and Exchange Commission’s broad theory of liability in enforcing fraud laws against a broker who transmitted a fraudulent statement dictated by his boss. Last month, the Supreme Court agreed to review the case (although of course Kavanaugh will be recused from it if he is confirmed).

All this goes without mentioning other issues that make libertarian ears ring, ranging from the Second Amendment—he would’ve struck down DC’s gun-registration requirement and ban on semi-automatic rifles, using an historical rather than a “tiers of scrutiny” approach—to a skepticism of broad judicial deference (Chevron, Auer, etc.) to executive agencies. As he repeated at his nomination ceremony, “the Constitution’s separation of powers protects individual liberty.”

In sum, libertarians aren’t going to agree with Kavanaugh on everything—we don’t agree on everything ourselves!—but he’s a big step forward for constitutional liberty. An exhaustive treatment of his record is beyond the scope of this essay, but suffice it to say that while questions about the Fourth Amendment, privacy, and criminal justice may be worth pursuing at his confirmation hearings, they’re no reason to oppose his nomination.