Persons, Houses, Papers, and Effects

To the People of the United States:

1. The pain point today

Under Section 702 of the Foreign Intelligence Surveillance Act, the government collects the communications of foreigners abroad without individual warrants. When an American is on the other end of the call or the email, that American’s words are collected too. The Federal Bureau of Investigation can then search the stored data using an American’s name, phone number or email address.

The government’s own counts show the scale. By the Office of the Director of National Intelligence’s figures, the FBI ran 2,964,643 U.S. person queries of Section 702 data in 2021, 119,383 in 2022, 57,094 in 2023, 5,518 in 2024 and 7,413 in 2025.¹ The counting method changed in 2023; under the older method the 2021 figure was 3,394,053.¹ The number of foreign targets rose to 349,823 in 2025, up from 291,824 in 2024.¹

The drop after 2022 is real, and it followed reforms. But it also shows how much depended on internal rules that could be rewritten. And Congress has struggled to decide what the rules should be. On June 11, 2026, a three-week extension failed in the House, 198 to 218, and the statute lapsed after June 12 for the first time in its history.² Court-approved certifications from March 2026 remain valid until March 2027,² so collection continues under rules no one has finished debating.

Meanwhile a second door has opened. Location histories, browsing records and other data that the government would need a warrant to compel can often be bought from commercial data brokers. On April 17, 2024, the House passed a bill to close that door, 219 to 199. The Senate never took it up.³

2. What they warned

The founders had a specific memory behind the Fourth Amendment: the general warrant, which let officers search where they pleased and seize what they found. George Mason’s Virginia Declaration of Rights, adopted June 12, 1776, condemned it: “That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed,“✓ verified, Q2 along with warrants that named no one, “are grievous and oppressive, and ought not to be granted.”✓ verified, Q3

During ratification, the Constitution’s opponents made privacy a central charge. Centinel, writing in Philadelphia on October 5, 1787, told readers they must decide “whether your houses shall continue to be your castles; whether your papers, your persons and your property, are to be held sacred and free from general warrants.”✓ verified, Q4 The Federal Farmer, a week later, listed among the rights of freemen “freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men’s papers, property, and persons.”✓ verified, Q5

Patrick Henry, at the Virginia ratifying convention in June 1788, made it vivid: “Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure, every thing you eat, drink, and wear.”✓ verified, Q6 Then he mocked the reassurance he expected to hear, that “it is hoped that the gentlemen who shall compose Congress will take care to infringe as little as possible the rights of human nature. This will result from their integrity.”✓ verified, Q7

The Constitution’s defenders answered in good faith, and their answer matters. Alexander Hamilton argued in The Federalist No. 84 that a bill of rights was unnecessary because the government had no power to violate those rights in the first place: “For why declare that things shall not be done which there is no power to do?”✓ verified, Q8 James Madison came to the opposite conclusion. Introducing amendments in the House on June 8, 1789, he said that if rights were written down, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive.”✓ verified, Q9 The result was the Fourth Amendment: “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.”✓ verified, Q1

The founders also understood why free people surrender privacy. Hamilton wrote in The Federalist No. 8: “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates.”✓ verified, Q10 And: “To be more safe, they at length become willing to run the risk of being less free.”✓ verified, Q11 Madison told the Convention on June 29, 1787: “The means of defence agst. foreign danger, have been always the instruments of tyranny at home.”✓ verified, Q12

They had read their history. Thomas Gordon, whose essays the founding generation knew well, described the informers of imperial Rome in his Discourses on Tacitus (1728): “Tiberius had the front to tell the Senate, that these insects, enemies to Law and Liberty, were the Guardians and Defenders of the Laws.”✓ verified, Q14 The danger, Gordon wrote, lay in a vague charge, “the perverted Law of violated Majesty, which came to signify every thing which the Accusers averred and the Emperors disliked.”✓ verified, Q15

3. How it came true

The courts carried Madison’s promise for a long time. In Boyd v. United States (1886), the Court held that “It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.”✓ verified, Q16 In 1928 the Court held that a wiretap was not a search. In Katz v. United States (1967) it reversed course: “For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”✓ verified, Q17 A concurring opinion supplied the test the country still uses, asking whether an expectation of privacy is one “that society is prepared to recognize as reasonable.”✓ verified, Q18 A dissent argued the words could not stretch so far: “These words connote the idea of tangible things with size, form, and weight, things capable of being searched, seized, or both.”✓ verified, Q20 And another concurrence noted a fact that would matter for decades: “Wiretapping to protect the security of the Nation has been authorized by successive Presidents.”✓ verified, Q19

That sentence describes the record of both parties. In 1975 and 1976 a Senate select committee documented decades of domestic intelligence abuses by federal agencies under administrations of both parties, including surveillance of political dissenters and civil rights leaders.⁴ Congress answered with the Foreign Intelligence Surveillance Act of 1978 and its secret court.

After September 11, 2001, in the same weeks that Congress voted the war authorization that carried the twenty-year war I traced in No. 3, From Those Who Spend to Those Who Pay, the President in 2001 authorized warrantless surveillance outside that court; the program became public in 2005. In 2008, a Congress with a Democratic majority, voting with members of both parties, wrote a version of it into law as Section 702, and a Republican President signed it.⁵ In 2013, disclosures by a contractor revealed that the National Security Agency, under court orders first obtained in the previous administration and renewed under the next President, of the other party, had been collecting Americans’ phone records in bulk. The Privacy and Civil Liberties Oversight Board concluded in January 2014 that the statute cited for the program did not provide an adequate legal basis for it, and in 2015 a federal appeals court agreed.⁶ Congress ended bulk collection in the USA FREEDOM Act of 2015, passed by the Senate 67 to 32.⁶

The machinery then turned toward a presidential campaign. In December 2019 the Justice Department’s Inspector General identified at least 17 significant errors or omissions in the FBI’s applications to surveil a former adviser to the 2016 campaign of the party that went on to win the White House.⁷ In a 2022 opinion later made public, the surveillance court itself detailed extensive improper querying of Section 702 data by FBI personnel.⁸

Congress reformed and reauthorized the program in April 2024 (House 273 to 147, Senate 60 to 34), adding approval requirements for FBI searches of Americans.⁹ A House amendment to require warrants for those searches failed on a tie vote.¹⁰ The coalitions on these votes crossed party lines.

4. The choke point

Four structures turn good intentions into permanent exposure.

The third-party gap. Katz itself said that what a person “knowingly exposes” is not protected, and later cases held that records a person hands to a bank or phone company carry no Fourth Amendment protection.¹¹ In 1979 that meant a list of dialed numbers. Today nearly everything a person does leaves records with a company. The Court began to correct this in Carpenter v. United States (2018), requiring a warrant for historical cell-site location records, but the gap remains wide, and the government can often buy what it cannot compel.

The standing wall. In Clapper v. Amnesty International USA (2013), the Court held 5 to 4 that challengers could not sue because their feared injury was not certainly impending.¹² Secret programs are hard to prove. A citizen who cannot show he was watched cannot ask a court whether the watching was lawful.

The one-sided courtroom. The surveillance court usually hears only the government. Congress added outside advisers in 2015, but the basic proceeding is not adversarial. Hamilton’s view that a bill of rights was unnecessary and Madison’s trust in judges as guardians both assumed judges who could see the whole case. Here they often cannot.

The deadline cliff. Congress legislates on surveillance by sunset, which forces each fight into a final week, and in 2026 the cliff came and went without a decision.

In my forthcoming No-America I name the effect of all four: “Elite Insulation weakens feedback.”✓ verified, S1 Secrecy removes the signal that tells the powerful they have gone too far. Citizens are left with what I have called “the gap between written law and lived law.”✓ verified, S2 The written law says no warrant shall issue without probable cause. The lived law lets the government search what it already holds and buy what it does not.

5. The fix and the prevention

Require a court order for searches of Americans. Treat an FBI search of Section 702 data using an American’s identifier as a search, and require a court order, with exceptions for emergencies, consent and cyber-attack victims. Trade-off: delay. Investigators argue that early queries clear innocent people quickly. The emergency exception and a fast-track process can answer much of that, but not all.

Close the purchase door. Bar federal agencies from buying data about Americans that would require legal process to compel. Trade-off: agencies lose a lead source, and some data used to find missing persons or trafficking victims would need a warrant first.

Give the secret court an adversary. Expand the role of outside advocates in significant cases, with access to the government’s filings. Trade-off: more people with clearances means more risk of leaks and slower decisions.

Give citizens a door to court. Require notice when evidence derived from Section 702 is used against an American, and create statutory standing for people who can show a reasonable likelihood they were swept in. Trade-off: litigation can expose sources and methods; courts would need secure procedures.

Replace the cliff with an audit. Longer authorizations paired with mandatory public audits, inspector general reviews and published query counts. Trade-off: less leverage for reformers at each renewal.

What a citizen can do. Check how your representative voted on the 2024 warrant amendment and the 2024 data-broker bill, and ask why. Review which apps on your phone share location data. And apply my Twelve-Word Standard to every surveillance power: “if it would be wrong for them, it is wrong for us.”✓ verified, S3 In this field the test takes a sharp form. Before you approve a power, picture it held by the President you trust least. It is the same test I applied to emergency powers in No. 4, A Ready Pretext.

6. The strongest objection, and the answer

The strongest objection is that the threats are real. Foreign intelligence services, terrorists and hackers target Americans every day. Section 702 data has helped stop attacks and warn victims. The objection adds that searching data the government already lawfully holds is not a new search at all, and that a warrant requirement would rebuild a wall that once kept agencies from sharing what they knew.

The answer begins by granting the threat. Hamilton granted it in The Federalist No. 8. The founders were not naive about danger. But the Fourth Amendment does not forbid searches. It places a neutral judge between the officer and the citizen. Madison’s answer in The Federalist No. 51, the paper whose rule of ambition against ambition I leaned on in No. 1, still governs: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”✓ verified, Q13 The task, he wrote, is that “you must first enable the government to control the governed; and in the next place oblige it to control itself.”✓ verified, Q22

One quotation is often thrown into this debate and deserves care. Benjamin Franklin wrote, and in 1775 repeated: “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”✓ verified, Q21 The line was first written in a colonial dispute over taxation and defense funding, not about personal privacy. It should not be used as a slogan. The better founding argument is structural: emergencies end, but powers built for them remain, and they pass to whoever wins the next election. I made the same argument about emergency declarations in No. 4: every such power becomes an inheritance for the next President, of whichever party. Both parties have now held these powers. Both have seen them turned toward their own.

7. Questions for the Candlelight

1. Henry mocked trusting the “integrity” of officials. When is trust in officials a reasonable safeguard, and when is it not?
2. Hamilton thought a bill of rights unnecessary; Madison thought judges would guard it. Who has been more right about surveillance, and why?
3. Should buying data from a company require the same court approval as compelling it? What would be lost?
4. If you could not prove you were watched, how would you ever challenge the watching?
5. Name a surveillance power you supported when your party held the White House. Would you grant it to the other party’s President?
6. Gordon warned of a charge that meant whatever “the Accusers averred and the Emperors disliked.” What modern standards are vague enough to work the same way?

Source notes

1. Office of the Director of National Intelligence, “Annual Statistical Transparency Report, Calendar Year 2025” (April 2026), https://archive.dni.gov/files/CLPT/documents/2026_ASTR_for_CY2025.pdf ; and the report for Calendar Year 2022 (2023), https://archive.dni.gov/files/CLPT/documents/2023_ASTR_for_CY2022.pdf
2. ABC News, “House and Senate fail to pass short-term extension of FISA ahead of Friday’s expiration deadline” (2026-06-11), https://abcnews.com/Politics/house-fails-pass-short-term-extension-fisa-ahead/story?id=133784588 ; NBC News, “A key U.S. spying program expires Friday night. What does that mean?” (2026-06-12), https://www.nbcnews.com/politics/trump-administration/fisa-section-702-warrantless-foreign-surveillance-expire-congress-rcna349798
3. GovInfo, Bill Status H.R. 4639 (118th Congress), Fourth Amendment Is Not For Sale Act: passed House 2024-04-17, 219-199, 1 present (Roll no. 136); received in the Senate 2024-04-18, no further action, https://www.govinfo.gov/bulkdata/BILLSTATUS/118/hr/BILLSTATUS-118hr4639.xml
4. U.S. Senate, Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Final Report, Book II, “Intelligence Activities and the Rights of Americans,” (1976-04-29); U.S. Senate Historical Office, “Church Committee,” https://www.senate.gov/about/powers-procedures/investigations/church-committee.htm (abuses across administrations from Franklin Roosevelt through the early 1970s; COINTELPRO targets included the Southern Christian Leadership Conference, the anti-Vietnam War movement and Martin Luther King, Jr.).
5. FISA Amendments Act of 2008, Pub. L. 110-261; project brief 02 (2026-09-29).
6. Privacy and Civil Liberties Oversight Board, “Report on the Telephone Records Program Conducted under Section 215” (2014-01-23); ACLU v. Clapper (2d Cir. 2015-05-07); U.S. Senate Roll Call Vote 114-1-201, H.R. 2048 (2015-06-02), https://www.senate.gov/legislative/LIS/roll_call_votes/vote1141/vote_114_1_00201.htm
7. U.S. Department of Justice, Office of the Inspector General, “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation,” Report 20-012 (2019-12-09), https://oig.justice.gov/reports/review-four-fisa-applications-and-other-aspects-fbis-crossfire-hurricane-investigation ; Executive Summary, p. xiii: at least 17 significant errors or omissions in the Carter Page FISA applications (seven in the first application and ten more in the three renewals), https://oig.justice.gov/sites/default/files/reports/120919-examination.pdf
8. Congressional Research Service, “FISA Section 702 and the 2024 Reforming Intelligence and Securing America Act,” R48592, https://www.everycrsreport.com/reports/R48592.html (“In a 2022 opinion, the FISC detailed extensive improper querying of Section 702 data by FBI personnel.”).
9. Clerk of the House, Roll Call 119, H.R. 7888 (2024-04-12), https://clerk.house.gov/Votes/2024119 ; U.S. Senate Roll Call Vote 118-2-150 (2024-04-19), https://www.senate.gov/legislative/LIS/roll_call_votes/vote1182/vote_118_2_00150.htm
10. Clerk of the House, Roll Call 114, H.R. 7888, Amendment No. 1 (Biggs), to require a warrant (2024-04-12): failed 212-212 (Republicans 128-86, Democrats 84-126), https://clerk.house.gov/Votes/2024114
11. Smith v. Maryland, 442 U.S. 735 (1979); United States v. Miller, 425 U.S. 435 (1976); Carpenter v. United States, 585 U.S. 296 (2018).
12. Legal Information Institute, Clapper v. Amnesty International USA, 568 U.S. 398 (2013), https://www.law.cornell.edu/supremecourt/text/11-1025

Notes marked S quote my own forthcoming book, No-America; line numbers refer to the Reading Edition v1.2 manuscript.

• S1. Shawn Cosner, No-America (forthcoming), Reading Edition v1.2, line 548: “Elite Insulation weakens feedback.”
• S2. Same, line 278: “What they are noticing is the gap between written law and lived law.”
• S3. Same, line 114: “if it would be wrong for them, it is wrong for us.”

Cross-references in this paper are to No. 1, Faction, and the Fire Not to Be Quenched (Madison’s rule of ambition against ambition from The Federalist No. 51, in its Part 4); No. 3, From Those Who Spend to Those Who Pay (the 2001 authorization for the use of force); and No. 4, A Ready Pretext (the test of picturing a power in the hands of the opponent you fear most, and emergency powers as an inheritance, in its Parts 4 and 5).

Quotation verification

Every quotation from a founder, thinker, court or the Constitution was checked with the Founders engine quote check (engine/quotecheck.py, check(), with the OCR line-break fallback) against the cited passage, on the Spark, CPU only, on 2026-10-06, and re-run after the revision pass of the same day. Passage ids refer to ~/projects/founders.

| S1 | Shawn Cosner, No-America (forthcoming), Ch. III | “Elite Insulation weakens feedback.” | manuscript line 548 | VERIFIED | | S2 | Same, Ch. III | “the gap between written law and lived law” | manuscript line 278 | VERIFIED | | S3 | Same, Ch. I (the Twelve-Word Standard) | “if it would be wrong for them…” | manuscript line 114 | VERIFIED |

Result of the re-run: 26 of 26 quotation instances in the body passed (founding, court and Constitution quotations plus my own three), 0 failed. My own quotations (S1 to S3) were checked by the same function against the manuscript lines cited.

Context for Q21: the line was first written in 1755, in the Pennsylvania Assembly’s reply to the governor during a dispute over a defense appropriation to be backed by a tax on estates in the province. Pennsylvania Assembly: Reply to the Governor, 11 November 1755, The Papers of Benjamin Franklin, vol. 6, Founders Online (National Archives), https://founders.archives.gov/documents/Franklin/01-06-02-0107 Dropped: Cato’s Letters passages on liberty and informers (rough long-s OCR in the corpus; not quotable verbatim).