Article

Adapting Conservation Governance Under Climate Change: Lessons from Indian Country

Anthropogenic climate change is increasingly causing disruptions to ecological communities upon which Natives have relied for millennia. These disruptions raise existential threats not only to ecosystems but to Native communities. Yet no analysis has carefully explored how climate change is affecting the governance of tribal ecological lands. This Article, by examining the current legal adaptive capacity to manage the effects of ecological change on tribal lands, closes this scholarly and policy gap.

This Article first considers interventions to date, finding them to be lacking in even assessing—let alone addressing—climate risks to tribal ecosystem governance. It then carefully explores how climate change raises distinctive risks and advantages to tribal governance as compared to federal and state approaches. Relying in part on a review of publicly available tribal plans, this Article details how tribal adaptation planning to date has fared.

Focusing on climate change and ecological adaptation, this Article delves into the substantive, procedural, and structural aspects of tribal governance. Substantively, tribal governance often tends to be considerably less wedded to conservation goals and strategies that rely on “natural” preservation, and many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with adaptation. Procedurally, like other authorities, many tribal governments could better integrate adaptive management and meaningful public participation into adaptation processes, yet some tribes serve as exemplars for doing so (as well as for integrating traditional ecological knowledge with Western science). Structurally, tribal ecological land governance should not only continue to tap the advantages of decentralized tribal authority but also complement it through more robust (1) federal roles in funding and information dissemination and (2) intergovernmental coordination, assuming other governments will respect tribal sovereignty. This Article concludes by identifying areas where tribal management practices might serve as valuable exemplars for adaptation governance more generally, as well as areas in which additional work would be helpful.

Introduction

In the wilderness of Alaska, where snow-covered landscapes stretch as far as the eye can see, a profound ecological drama is unfolding. It is a story that speaks of the intimate bond between the land, its creatures, and the Native peoples who have called it home for millennia. At the heart of this story are herds of caribou, majestic creatures with antlered crowns, whose annual migrations have been a spectacle of nature and a lifeline for the Native communities of Alaska.1 1.Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps(Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”).Show More But as the world warms due to climate change, the Arctic’s icy facade begins to crack and melt, causing profound transformation.2 2.Id.(“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”).Show More The caribou, long attuned to the rhythms of the frozen tundra, now find their ancient routes disrupted as climate change negatively affects food and habitat.3 3.See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP].Show More

For Alaska Natives, this upheaval is nothing short of a crisis. These Native communities have relied on the caribou as a primary source of sustenance, clothing, and cultural significance for countless generations.4 4.Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])).Show More Subsistence hunters, who used to be able to rely on caribou for survival, now have to travel as many as 200 miles to find a herd, and one hunter reported not seeing caribou for years.5 5.W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M].Show More The caribou, once so abundant and dependable, have become less predictable, and Alaska’s Native communities who depend on them are left in uncertainty.6 6.Thorsberg et al., supra note 1.Show More The very essence of their identity, intertwined with the land and the caribou, faces an existential challenge. This harrowing story is but one example of myriad instances across “Indian country”7 7.18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022).Show More in which anthropogenic climate change is profoundly affecting species’ traditional habitats. Climate-driven species shifts affect both the communities whose lands species previously inhabited and the communities onto whose lands such species have moved (or are attempting to move).

Anthropogenic climate change has induced, and will continue to induce, substantial changes to virtually all ecosystems around the globe. The distributions of plant and animal species are shifting faster than they did historically.8 8.See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming).Show More As demonstrated by the story of caribou in Alaska, these stressors are fundamentally changing ecosystems, creating new communities, and raising new challenges for management such as how to deal with “new natives” displacing or otherwise harming “old natives.”9 9.Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”).Show More Though climate change is causing stress to and reshaping virtually every feature of human and nonhuman systems in every community, this Article focuses on the long-overlooked but massive effects of climate change on biotic communities—in particular, those located on tribal lands, species or landscapes of cultural or spiritual significance to Native peoples, and/or nonhuman biota potentially subject to tribal governance in the foreseeable future.

As one of the Authors has written extensively about elsewhere, the substantial ecological changes wrought by climate change—and the uncertainty that accompanies these stressors—likely necessitate a rethinking of the substantive goals, procedural mechanisms, and structural institutions of conservation governance worldwide.10 10.Alejandro E. Camacho,De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies,15 Law, Innovation & Tech. 280, 299–300(2023) [hereinafter Camacho, In the Anthropocene].Show More Substantively, climate change illuminates the tensions between the various conventional objectives of conservation instantiated throughout natural resources law.11 11.See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate).Show More Procedurally, climate change also raises fundamental questions about how to effectively cultivate participatory decision-making processes in ways that manage ecological and regulatory uncertainty.12 12.Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”).Show More Finally, climate change exacerbates existing cross-jurisdictional challenges—for example, transboundary cost externalization, regulatory commons risks, and conflicts between different adopted management strategies.13 13.See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts).Show More

As detailed in this Article, tribal sovereignty, tribal lands, and Indigenous cultures14 14.A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.”Show More raise these issues in distinctive and insightful ways. Building on issues and paradoxes we have written about more broadly elsewhere, this Article delves into the intersection of tribes and climate change, with a special emphasis on ecological adaptation. Tribal lands and governance amplify certain challenges that are likely to be experienced elsewhere, in part due to the distinctive vulnerabilities15 15.We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change.Show More of tribal communities.16 16.See infra Subsection I.B.1.Show More There is an indisputable and

well-documented history of the taking of vast expanses of indigenous lands with abundant resources, along with active suppression of indigenous peoples’ culture and political institutions, entrenched patterns of discrimination against them and outright brutality, all of which figured in the history of the settlement of the country and the building of its economy.17 17.S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015).Show More

These “conditions of disadvantage persist with the continuing effects of a long history of wrongs and past, misguided policies.”18 18.Id. at 59.Show More The brutal treatment of Indigenous peoples by colonial powers19 19.See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”).Show More has resulted in the deepened vulnerability20 20.For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”).Show More of the approximately 56.2 million acres of land now held in trust by the federal government for tribes.21 21.What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8].Show More In terms of climate change, the cumulative impact of this historic mistreatment has resulted in many tribal communities being placed on less desirable land and, as a result, facing poor economic conditions—factors which lessen tribes’ ability to effectively combat the negative impacts of climate change.22 22.See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943.Show More

There are legal and cultural differences that affect the magnitude of this vulnerability. Native cultures and traditions are often tied to the environment and land in a manner that differs from that of the dominant society.23 23.We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev. 225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”).Show More While it is without doubt that each tribal nation has a distinctive relationship with its particular land and environment, it is also true that the common spiritual, medicinal, and cultural connections that tribal communities have with their land differs in kind from the relationship other communities in the United States have with their land.24 24.Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev. 246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”).Show More Many tribal communities “have a deep relationship with ancestral homelands for sustenance, religious communion and comfort, and to maintain the strength of personal and interfamilial identities. Through language, songs, and ceremonies, tribal people continue to honor sacred springs, ancestral burial places, and other places where ancestral communities remain alive.”25 25.Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement,32 Harv. Env’t L. Rev. 373, 381 (2008).Show More As a result, for many (but not all) tribal and Indigenous people, culture and spirituality are connected to specific lands. Such connections can provide wisdom about adaptive capacity, but they also can hinder the benefits or even availability of certain adaptive strategies (e.g., making it especially traumatizing to relocate or to be unable to relocate in the face of climate change).

The distinctive legal connections tribes have to specific lands, for instance, restrict the capacity for tribes to accommodate climate change through movement. Many tribes have treaty agreements with the federal government, and the rights emerging from these treaties (such as hunting and fishing rights) are usually tied to a tribe’s traditional homelands.26 26.Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24.Show More In fact, the majority of federal Indian law is connected to the legally defined “status” of land, defined as “Indian country.”27 27.See supra note 7.Show More The fact that much of Indian law and treaty rights are connected to specific parcels of land deepens tribes’ vulnerability to climate change, as a tribe may not easily leave its tribal territory and continue to enjoy the same legal rights elsewhere.

A focus on tribal ecosystem governance in light of climate change is also invaluable given tribes’ distinctive role in advancing climate change adaptation and resource conservation. First, there are approximately 56.2 million acres of land held in trust by the federal government for the benefit of tribes and individual Indians.28 28.What Is a Federal Indian Reservation?, supra note 21.Show More Many areas falling under tribal control can be used for conservation purposes,29 29.See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024).Show More with more Indigenous-managed lands being ecologically intact and serving as a refuge for threatened species.30 30.Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally).Show More Second, because of the sovereign status of these tribes, states and localities have little jurisdictional control over the regulatory activity on these lands.31 31.California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption).Show More Adaptation planning therefore is vital for ensuring that effective resource conservation is occurring. Third, in line with the experimentalist benefits of a federal system,32 32.Camacho & Glicksman, supra note 13, at 34.Show More the innovations being developed by tribes in this space may prove valuable to other sovereigns—such as other tribes, states, and localities—as they look to develop their own climate change adaptation policies. Finally, there are likely to be substantial opportunities for interjurisdictional information sharing and learning; federal, state, and municipal jurisdictions are likely to learn from the experience of tribal authorities in climate adaptation and ecosystem management, and vice versa.33 33.See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same).Show More

Accordingly, a careful and thorough accounting of the distinctive governance challenges raised on tribal lands by climate change is long overdue. Unfortunately, existing academic literature and federal governmental analyses on, and initiatives for, addressing the potential harms from climate change—both the ecological effects on tribal lands, as well as the challenges raised for effective management of tribal lands—remain limited. The scientific analysis of climate effects on vulnerable species, and biota on tribal lands more generally, lags behind that for other lands. More importantly, existing scholarly literature and government analyses insufficiently explore how climate change is likely to stress the governance goals, processes, and institutions that may influence the management of ecological resources on tribal lands.

This Article seeks to begin to fill these gaps in several important ways. The first objective is to bring awareness of the distinctive challenges and opportunities of climate-related conservation on tribal land to the broader scholarly and policy discussion on climate change adaptation in general and ecological adaptation in particular. The character of tribal lands offers important context for (1) assessing the potentially conflicting substantive conservation goals of ecosystem governance; (2) working through decisional processes about conservation; and (3) managing structural governance problems, including regulatory fragmentation and intergovernmental coordination. Second, this Article makes clear that the federal government could and should do substantially more to support tribal governance in the context of preparing for and managing the effects of climate change, particularly related to promoting biodiversity and ecological health. Finally, this Article illuminates various insights for scholars and policymakers, not only in tribal governments engaging in adaptation planning but also local, state, and federal jurisdictions. In particular, it offers examples of tribal governments that may be engaging in adaptation strategies about which other authorities can learn important lessons.

To accomplish these goals, Part I establishes a foundation upon which to scaffold our arguments by delving into the scant existing literature related to ecological adaptation and climate change in Indian country. Scholars and policymakers have focused on concerns about tribal vulnerabilities and sovereignty, as well as the integration of Indigenous knowledge (“IK”) (i.e., the breadth of Indigenous socioeconomic, cultural, and scientific knowledge) and traditional ecological knowledge (“TEK”) into federal and state processes, but they largely neglect deeper substantive, procedural, and structural governance concerns raised by climate change. Because effective governance is key to adequately addressing the challenges posed by climate change and ecological adaptation, evaluation of tribal governance structures proves incredibly important to any discussion of solutions.

Part II takes a deeper dive into how these different facets of governance are likely to be affected by the impact of climate change on tribal lands. To do so, it relies in part on the first thorough assessment of published and publicly available tribal adaptation plans. First, it considers the conventional strategies and goals of resource conservation, namely laws promoting historical preservation, natural and wilderness preservation, and sustained yield. While some tribal governments face tensions between promoting historical fidelity and managing climate change, others are developing adaptation strategies that are more congruent with promoting biodiversity and long-term ecological health. Additionally, as compared to federal and state resource management laws, tribal governance tends to be less wedded to goals and strategies that rely on “natural” preservation. Finally, many tribes focus less on maximizing yield in favor of more flexible objectives that may be more congruent with ecological adaptation.

In terms of procedural ecosystem governance, this Article emphasizes the need to incorporate adaptability, promote meaningful participation, and better integrate Western science with TEK. We explore, however, how long-established governance frameworks for many tribal governments, and even some tribal adaptation plans, allow for more adaptive and open decision-making. Some adaptation plans also illustrate how TEK can be effectively combined in resource management with conventional Western scientific data generation and analysis.

Finally, this Article considers the structural configuration of authority among the constellation of institutions affecting the governance of tribal ecological lands. Tribes may suffer under prevailing decentralized, fragmented, and uncoordinated conservation governance, yet there nonetheless are diversity, experimentation, expertise, and legitimacy advantages to decentralized governmental structures—especially in the context of climate change adaptation. As such, it makes sense to maintain decentralized authority but to complement it through more robust federal roles in funding and information collection and dissemination, as well as by better promoting intergovernmental coordination that expands on recent federal efforts to make federal-tribal consultation more robust.34 34.This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty.Show More This Article concludes with a forward-looking agenda for scholars and policymakers interested in enhancing the cross-jurisdictional governance of tribal ecological lands.

  1.  Christian Thorsberg, Andrea Medeiros, Kristin Reakoff & Brittany Sweeney, Caribou and Communities in a Changing Climate, ArcGIS StoryMaps (Dec. 5, 2023), https://storymaps.arc‌gis.com/stories/158c95ff398440e8b875a791e2bec2f8/ [https://perma.cc/2VA2-GPDJ] (“Caribou (Rangifer tarandus) have roamed the circumpolar north for hundreds of thousands of years. . . . Alaska Native peoples and other subsistence users depend upon this cyclical movement for annual harvests, relying on caribou for food, clothing, cultural practice, and emotional and spiritual health.”). ↑
  2.  Id. (“[A]s a warming climate changes their habitat—causing seasons to shift, ice to melt at different times of the year, and unpredictable precipitation—the population of many of Alaska’s caribou herds has declined, affecting not only the species, but humans who have lived with and from them since [time] immemorial.”). ↑
  3.  See Elizabeth Manning, Caribou and Climate Change: The Nelchina Caribou Herd, Lichens and Fire, Alaska Fish & Wildlife News (Mar. 2008), https://www.adfg.alaska.gov/in‌dex.cfm?adfg=wildlifenews.view_article&articles_id=356 [https://perma.cc/H73R-6BLP]. ↑
  4.  Thorsberg et al., supra note 1; see also Caribou Stewardship Based on Indigenous Knowledge, Nat’l Park Serv. (Nov. 24, 2020), https://www.nps.gov/articles/000/ikcaribouste‌wardship.htm#:~:text=The%20I%C3%B1upiat%20have%20relied%20on,hunt%20through%20federal%20subsistence%20management [https://perma.cc/UZ7Z-ZSLM]; Hannah Atkinson, Mobilizing Indigenous Knowledge Through the Caribou Hunter Success Working Group, 9 Land, Oct. 31, 2020, at 1, 2, https://www.mdpi.com/2073-445X/9/11/423 [https://pe‌rma.cc/KY4P-USS7] (“For the Iñupiat of northwest Alaska, caribou is a cultural keystone species. That is, the [Western Arctic Caribou Herd] ‘play a unique role in shaping and characterizing the identity of the people who rely on them [and] that become embedded in a people’s cultural traditions and narratives, their ceremonies, dances, songs, and discourse.’” (footnotes omitted) (quoting Ann Garibaldi & Nancy Turner, Cultural Keystone Species: Implications for Ecological Conservation and Restoration, 9 Ecology & Soc’y, no. 3, 2004, at 1, 1, https://www.ecologyandsociety.org/vol9/iss3/art1/print.pdf [https://perma.cc/3ZLT-ZC‌RQ])). ↑
  5.  W. Arctic Caribou Herd Working Grp., Working Group Proposes Large Reduction in Caribou Harvest, Caribou Trails, Summer 2023, at 1, 1, https://www.adfg.alaska.gov/static/ho‌me/library/pdfs/wildlife/caribou_trails/caribou_trails_2023.pdf [https://perma.cc/467Q-HZ‌6M]. ↑
  6.  Thorsberg et al., supra note 1. ↑
  7.  18 U.S.C. § 1151 (“Except as otherwise provided in sections 1154 and 1156 of this title, the term ‘Indian country’, as used in this chapter, means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”). This term originated in the context of the elimination of Natives via war. Roxanne Dunbar-Ortiz, An Indigenous People’s History of the United States 131–32 (Tenth-Anniversary ed. 2022). ↑
  8.  See generally I-Ching Chen, Jane K. Hill, Ralf Ohlemüller, David B. Roy & Chris D. Thomas, Rapid Range Shifts of Species Associated with High Levels of Climate Warming, 333 Science 1024 (2011) (demonstrating that species range shifts are occurring at an accelerated rate associated with high levels of climate warming). ↑
  9.  Alejandro E. Camacho & Jason S. McLachlan, Regulatory Fragmentation: An Unexamined Barrier to Species Conservation Under Climate Change, 3 Frontiers in Climate, Nov. 22, 2021, at 1, 4, https://www.frontiersin.org/journals/climate/articles/10.3389/fclim.20‌21.735608/full [https://perma.cc/WXD9-539F] (“In the novel ecological communities created when ‘new natives’ mix with ‘old natives,’ the difficulty of establishing [lists of prohibited invasive species] will be compounded by ambiguity about the status of ‘new natives’ combined with the difficulty of assessing the acceptable impact of ‘new natives’ in the context of novel ecological communities.”). ↑
  10. Alejandro E. Camacho, De- and Re-Constructing Public Governance for Biodiversity Conservation, 73 Vand. L. Rev. 1585, 1589 (2020) [hereinafter Camacho, De- and Re-Constructing]; Alejandro E. Camacho, In the Anthropocene: Adaptive Law, Ecological Health, and Biotechnologies, 15 Law, Innovation & Tech. 280, 299–300

    (2023) [hereinafter Camacho, In the Anthropocene]. ↑

  11.  See Camacho, In the Anthropocene, supra note 10, at 286, 298–300 (detailing traditional goals of conservation typical in natural resource law and their pitfalls in a changing climate). ↑
  12.  Camacho, De- and Re-Constructing, supra note 10, at 1613 (“The standard public processes used for implementing public biodiversity management and for regulating private activity have not been well structured to promote learning and manage the substantial uncertainties and evolving character of ecological resources.”). ↑
  13.  See id. at 1623–24; see also Camacho, In the Anthropocene, supra note 10, at 303 (arguing that current legal frameworks in Western jurisdictions are not designed to manage complex, transboundary issues like climate change); Alejandro E. Camacho & Robert L. Glicksman, Reorganizing Government: A Functional and Dimensional Framework 200 (2019) (describing increased cross-jurisdictional challenges raised by climate change, such as interjurisdictional spillovers and conflicts). ↑
  14.  A note about the terminology used in this Article. We use the term “tribe” or “tribal” to refer to the 574 federally recognized tribes located within the exterior boundaries of the United States. Indian Entities Recognized by and Eligible to Receive Services from the United States Bureau of Indian Affairs, 89 Fed. Reg. 944 (Jan. 8, 2024). We acknowledge that there are numerous Indigenous groups within the United States that have not been federally recognized for a wide variety of historical and political reasons (e.g., Native Hawaiians). Cohen’s Handbook of Federal Indian Law §§ 3.02, 4.07[4][a], [c] (Nell Jessup Newton et al. eds., 2005) (discussing factors contributing to federal recognition of tribes generally and speaking to the situation of Native Hawaiians specifically). Because this Article focuses on federal law and the federal government’s relationship with tribes, however, we will focus our analysis on federally recognized tribes. When we wish to be more inclusive than federally recognized tribes, we will use the term “Indigenous.” ↑
  15.  We do not use the term “vulnerabilities” to suggest that tribes are victims, or somehow lesser than other communities impacted by climate change. Rather, we use this term to highlight historical and legal differences that combine to make tribal communities often uniquely vulnerable to the impacts of climate change. ↑
  16.  See infra Subsection I.B.1. ↑
  17.  S. James Anaya, Report of the Special Rapporteur on the Rights of Indigenous Peoples on the Situation of Indigenous Peoples in the United States of America, 32 Ariz. J. Int’l & Compar. L. 51, 61 (2015). ↑
  18.  Id. at 59. ↑
  19.  See, e.g., Immigration & Relocation in U.S. History: Native American, Libr. of Cong., https://www.loc.gov/classroom-materials/immigration/native-american/ [https://perma.cc/K‌CK7-QG4L] (last visited Sept. 6, 2024) (explaining that European settlement in North America triggered “disease, starvation, and bloodshed”). ↑
  20.  For a discussion of the use of the word “vulnerability,” see Hans-Martin Füssel, Vulnerability: A Generally Applicable Conceptual Framework for Climate Change Research, 17 Glob. Env’t Change 155, 157–58 (2007) (presenting a framework for understanding the concept of vulnerability through the lens of four different factors: physical, economic, social, and environmental); see also Karen O’Brien, Siri Eriksen, Lynn P. Nygaard & Ane Schjolden, Why Different Interpretations of Vulnerability Matter in Climate Change Discourses, 7 Climate Pol’y 73, 74 (2007) (attempting to organize the varying scholarly definitions of “vulnerability” into one “common framework”). ↑
  21. What Is a Federal Indian Reservation?, U.S. Dep’t of the Interior: Bureau of Indian Affs. (Aug. 19, 2017, 2:53 PM), https://www.bia.gov/faqs/what-federal-indian-reservation [https://‌perma.cc/TUY7-47Y8]. ↑
  22.  See Justin Farrell et al., Effects of Land Dispossession and Forced Migration on Indigenous Peoples in North America, 374 Science, Oct. 29, 2021, at 1, 8, https://www.scien‌ce.org/doi/epdf/10.1126/science.abe4943. ↑
  23.  We would like to avoid traditional stereotypes of American Indians as “Noble Savages” or “Bloodthirsty Savages.” See Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 Vt. L. Rev
    .

    225, 270 (1996) (“The problems of cross-cultural interpretation and the attempt to define ‘traditional’ indigenous beliefs raise a common issue: the tendency of non-Indians to glorify Native Americans as existing in ‘perfect harmony’ with nature (the ‘Noble Savage’ resurrected) or, on the other hand, denounce them as being as rapacious to the environment as Europeans (the ‘Bloodthirsty Savage’ resurrected).”). ↑

  24.  Frank Pommersheim, The Reservation as Place: A South Dakota Essay, 34 S.D. L. Rev
    .

    246, 250 (1989); see also Nat’l Cong. of Am. Indians, Resolution EWS-06-004: Supporting a National Mandatory Program to Reduce Climate Change Pollution and Promote Renewable Energy, at 2 (2006 Winter Session), https://archive.ncai.org/attachments/Resolution_KSlvpc‌MnfSafhsDsxFnQcTDKMclEpNfvEPQFCsLlhonOXZrOOXu_EWS-06-004.pdf [https://per‌ma.cc/89XA-Z2K3] (“[C]limate-related changes to the weather, food sources, and local landscapes undermine the social identity and cultural survival of American Indians and Alaska Natives . . . .”). ↑

  25.  Mary Christina Wood & Zachary Welcker, Tribes as Trustees Again (Part I): The Emerging Tribal Role in the Conservation Trust Movement, 32 Harv. Env’t L. Rev. 373, 381 (2008). ↑
  26.  Cohen’s Handbook of Federal Indian Law, supra note 14, § 4.05[1], at 276, § 18.02, at 1122–24. ↑
  27.  See supra note 7. ↑
  28. What Is a Federal Indian Reservation?, supra note 21. ↑
  29.  See Background: Sharing Information & Techniques Nationwide, Native Am. Fish & Wildlife Soc’y, https://www.nafws.org/about/background/ [https://perma.cc/HEJ2-CMPV] (last visited Sept. 6, 2024). ↑
  30.  Cf. Stephen T. Garnett et al., A Spatial Overview of the Global Importance of Indigenous Lands for Conservation, 1 Nature Sustainability 369, 370 (2018) (describing the global importance and value of Indigenous-managed lands in conservation goals); Christopher J. O’Bryan et al., The Importance of Indigenous Peoples’ Lands for the Conservation of Terrestrial Mammals, 35 Conservation Biology 1002, 1006 (2021) (highlighting the importance of Indigenous lands for the conservation of threatened and endangered mammal species globally). ↑
  31.  California v. Cabazon Band of Mission Indians, 480 U.S. 202, 207 (1987) (explaining that states generally do not have the authority to enforce their laws on tribes unless Congress grants them the power). See generally Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) (holding that the laws of Georgia generally did not apply to Cherokee territory within the state because of tribal sovereignty and federal preemption). ↑
  32.  Camacho & Glicksman, supra note 13, at 34. ↑
  33.  See generally Morgan Hepler & Elizabeth Ann Kronk Warner, Learning from Tribal Innovations: Lessons in Climate Change Adaptation, 49 Env’t L. Rep. 11130 (2019) (discussing how tribal governments can serve as valuable “laboratories” from which other sovereigns can learn); Elizabeth Ann Kronk Warner, Returning to the Tribal Environmental “Laboratory”: An Examination of Environmental Enforcement Techniques in Indian Country, 6 Mich. J. Env’t & Admin. L. 341 (2017) (same); Elizabeth Ann Kronk Warner, Justice Brandeis and Indian Country: Lessons from the Tribal Environmental Laboratory, 47 Ariz. St. L.J. 857 (2015) [hereinafter Kronk Warner, Justice Brandeis and Indian Country] (same); Elizabeth Ann Kronk Warner, Tribes as Innovative Environmental “Laboratories,” 86 U. Colo. L. Rev. 789 (2015) [hereinafter Kronk Warner, Tribes as Innovative Environmental “Laboratories”] (same). ↑

  34.  This recommendation assumes that other sovereigns will acknowledge and respect tribal sovereignty. ↑

Police Vigilantism

This Article uncovers a critical yet unexplored dimension of policing: the strategic oscillation of police officers between their roles as state actors and private individuals, and its significant implications for police accountability frameworks. As officers toggle between these two roles to their legal advantage, they exploit a deep, systemic flaw in the structural design of policing. Tracing the trajectory of policing from its vigilante origins to its institutionalized form today, this Article argues that contemporary policing merges state-sanctioned power with vestiges of vigilantism to blur the public-private divide. This duality enables a form of state-sanctioned vigilantism through which officers exploit legal gray areas. Police wield the state’s coercive power under the color of law, enjoying immunities and legal protections unavailable to private individuals. Yet, simultaneously, they can invoke their identity as private individuals to circumvent constitutional constraints on their conduct.

The resulting rupture of accountability frameworks is a significant design flaw that harms policed individuals and communities while undermining the institution of policing from within. Where these frameworks presume a clear divide between state and private action, officers instead navigate a liminal space, leveraging state-sanctioned power while exploiting doctrinal ambiguities to subvert legal constraints. The Article critically evaluates how the state action doctrine, designed to delineate state and private conduct, fails to account for this reality. So, too, does the qualified immunity doctrine, which often shields vigilante conduct that exceeds constitutional bounds. To address this pressing problem, the Article advocates for a radical reconceptualization of police authority and accountability. It proposes reinterpreting the state action doctrine to break down the dichotomy between state and private action. It suggests implementing comprehensive statutory regulations to constrain police identity shopping. Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itself.

Introduction

In the law of policing, where the expansive authority of the state often intersects and clashes with the boundaries of individual liberty, the dual role of a police officer as both state actor and private citizen presents a unique and currently unidentified legal challenge. Consider this scenario: a police officer, driving home from his night shift, crosses from the city where he works into the township where he lives. Moments later, he observes a young man with a backpack jumping a fence between two residential properties. Acting with probable cause under the citizen’s arrest statute,1 1.These statutes, often codifications of common law, are abundant across jurisdictions. See infra Section II.B. For the concept and history of these statutes and consequent arrests, see generally Ashish Valentine, What Is the Citizen’s Arrest Law at the Heart of the Trial over Ahmaud Arbery’s Death?, NPR (Oct. 26, 2021, 10:39 AM), https://www.npr.org/2021/10/26/‌1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death [https://‌perma.cc/5L5V-SXAK]; Chad Flanders, Raina Brooks, Jack Compton & Lyz Riley, The Puzzling Persistence of Citizen’s Arrest Laws and the Need to Revisit Them, 64 How. L.J. 161 (2020); Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 Cornell J.L. & Pub. Pol’y 557 (2016); Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles and Darrell A. H. Miller, Pointing Guns, 99 Texas L. Rev. 1172 (2021), 100 Tex. L. Rev. Online 1 (2021) (surveying citizen’s arrest laws around the country).Show More but not the Fourth Amendment,2 2.U.S. Const. amend. IV.Show More the officer pursues the young man, unholsters his department-issued gun, pins him to the ground, and forcibly opens the backpack.3 3.This fictional example is not so fictional, as variations of it have come up in countless cases across jurisdictions. See, e.g., State v. Phoenix, 428 So. 2d 262, 265 (Fla. Dist. Ct. App. 1982) (“In addition to any official power to arrest, police officers also have a common law right as citizens to make so-called citizen’s arrests.”); State v. Slawek, 338 N.W.2d 120, 121 (Wis. Ct. App. 1983) (“An extensive line of cases from other states, however, upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest when the place of arrest authorizes a private person to make a citizen’s arrest under the same circumstances.”); State ex rel. State v. Gustke, 516 S.E.2d 283, 290 (W. Va. 1999) (“Even if the officers were without statutory arrest powers as policemen, they retained power as citizens to make an arrest . . . .” (quoting Dodson v. State, 381 N.E.2d 90, 92 (Ind. 1978))); Commonwealth v. Harris, 415 N.E.2d 216, 220 (Mass. App. Ct. 1981) (citing with approval “[a]n extensive line of cases from other states uphold[ing] the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a ‘citizen’s arrest’ under the same circumstances”).Show More His use of force breaks three of the young man’s ribs. When the young man files a civil rights lawsuit, the officer contends he was acting as a private individual, not a state officer.4 4.See, e.g., Budnick v. Barnstable Cnty. Bar Advocs., Inc., No. 92-1933, 1993 WL 93133, at *3 (1st Cir. Mar. 30, 1993) (“But, ‘a police officer, while unable to act as an officer in an adjoining jurisdiction, does not cease to be a citizen in that jurisdiction . . . .’” (quoting Commonwealth v. Dise, 583 N.E.2d 271, 274 (Mass. App. Ct. 1991))); State v. Miller, 896 P.2d 1069, 1070 (Kan. 1995) (“An officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person. The officer’s actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest.”).Show More The court agrees, dismissing the civil rights claims.5 5.See, e.g., United States v. Layne, 6 F.3d 396, 398–99 (6th Cir. 1993) (finding arrest made by sheriff outside his geographical jurisdiction valid under private citizen’s arrest statute and thus did not violate Fourth Amendment); State v. Furr, 723 So. 2d 842, 845 (Fla. Dist. Ct. App. 1998) (“[T]he trial court erred by concluding that a citizen’s arrest is nullified where the officer, acting outside of his jurisdiction, uses a marked police car, and otherwise announces his official position.”).Show More

Another night, another town. Two officers respond to a report of an older man shouting outside a local apartment complex. When they arrive, the man whom they believe to be the subject of the call is waving a medium-sized object in the air. The officers’ approach seems to set off the man, and he yells at a higher volume, still waving the object in his hand. At that moment, one of the officers pulls a gun, fires at the man, and kills him. As the man lies dead on the pavement, the officers find headphones still playing music in his ears and an air gun by his arm. When the state attorney brings an indictment for homicide, the officer invokes the state’s stand-your-ground law. He argues that, regardless of the laws governing officer use of force, he had rights as a private citizen to shoot in self-defense.6 6.Unfortunately, this is another not-so-fictional example. For a similar case, see State v. Peraza, 259 So. 3d 728, 729–30 (Fla. 2018).Show More The court agrees and quashes the indictment.7 7.Id. at 733.Show More

Both cases bring to light the ambiguous and often controversial nature of police authority when the roles of state actor and private citizen converge, raising questions of accountability in law enforcement. This Article is the first to systematically identify the existence of these dual identities and the consequent discretionary legal space granted to police officers. I term this phenomenon “identity shopping,” denoting a significant problem in current policing law and doctrine which profoundly impacts accountability structures.8 8.See infra Section II.A.Show More Identity shopping refers to the strategic maneuvering by police officers between their roles as state agents and private citizens, depending on which identity offers the most advantageous legal position in a given situation.9 9.See infra Section II.B.Show More Think of it as a light switch on a dimmer, with “state actor” on one end and “private citizen” on the other. Officers can often slide the switch back and forth, selecting which rules apply to them––the rules governing state actors or those applicable to private individuals.

Identity shopping reflects a deeper systemic issue arising from the inherent structures of policing that allow, and perhaps even encourage, officers to shift between roles to minimize legal repercussions or maximize authority. Drawing from historical insights, this Article traces the evolution of policing from its origins as informal vigilante groups to formally recognized and state-sanctioned law enforcement.10 10.See infra Section I.A.Show More The midcentury professionalization movement and subsequent regulation of the police contributed to the reconceptualization of police from vigilantes to formal state actors.11 11.See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2004–05 (2017).Show More This transformation has endowed officers with distinct responsibilities, leading courts to also grant them unique rights, including expanded civil immunities and criminal defenses.12 12.See infra Section II.B.Show More However, this transformation of policing has not been linear but rather a tapestry of conflicting identities and roles, an intersection of past and present, informal authority and formal legitimacy.

This Article demonstrates that this transition from vigilantes to state-sanctioned law enforcement has not fully extinguished the initial ethos of vigilantism within policing. Despite their formal designation as state actors, police maintain a bifurcated identity, traversing the line between public servants and private individuals. This duality permits a latent form of vigilante behavior, now cloaked under state authority.13 13.See id.Show More Termed as “shadow vigilantism,”14 14.See Paul H. Robinson, The Moral Vigilante and Her Cousins in the Shadows, 2015 U. Ill. L. Rev. 401, 453. Robinson juxtaposes “shadow vigilantism” with “classic vigilantism.” Id. at 404. Unlike classic vigilantism, which involves explicitly unlawful or unauthorized action, shadow vigilantism refers to the less obvious and potentially more damaging ways individuals may resist and subvert the legal system. Id. at 453. To be sure, for several scholars vigilantism connotes illegality, but the way this paper defines vigilantism through the use of the term “shadow vigilantism” is wider and can include lawfully authorized activity. See Ekow N. Yankah, Deputization and Privileged White Violence, 77 Stan. L. Rev. (forthcoming 2025) (manuscript at 3–5) (on file with author) (distinguishing between vigilantism and deputization); Regina Bateson, The Politics of Vigilantism, 54 Compar. Pol. Stud. 923, 925–27 (2021) (providing various conceptions of vigilantism).Show More this phenomenon might seem paradoxical: How can those entrusted with upholding the law operate in a way that undermines it? Yet police vigilantism thrives in the gray areas between state action and private conduct, where officers morph into citizens still empowered by their official identity, and private citizens assume the mantle of law enforcement, invoking a privilege to use force.

Officers may use public authority symbols like uniforms and badges to make off-duty arrests, employ deadly force on duty while invoking defenses intended for civilians, or engage in extralegal activities adjacent to law enforcement, all while retaining the ability to choose the most favorable legal identity when confronted with legal accountability.15 15.See infra Section II.B; see, e.g., Laughlin v. Olszewski, 102 F.3d 190, 192 & n.1 (5th Cir. 1996); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999); Swiecicki v. Delgado, 463 F.3d 489, 490–91 (6th Cir. 2006); Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 746–47 (5th Cir. 2001); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1427–28 (10th Cir. 1984).Show More This interplay of identities thus fosters a dynamic where the imprints of vigilante origins intermittently resurface. As a result, contemporary policing operates within a unique nexus, merging state-sanctioned power with discretionary—sometimes unilateral—approaches reminiscent of its vigilante roots.

This Article contends that the dual identity available to police officers is a significant design flaw in the accountability structures of law enforcement.16 16.See infra Part III.Show More Police accountability frameworks are fundamentally misaligned with the dynamic nature of police identity and are thus inadequate to address the complexities of identity shopping and shadow vigilantism. This systemic oversight creates a gap in police accountability that undermines its efficacy from within.

The existing police accountability system is based on clear demarcations of legal identity and fails to account for entities capable of selecting between private citizenry and state agency. Its basis, the state action doctrine, dictates that only certain actions undertaken by certain actors qualify as state actions and must thus conform to the specific legal constraints but also enjoy the legal immunities of the state.17 17.See infra Section III.A.Show More Yet, identity shopping exploits the cracks in this doctrine, leveraging the nebulous space between official authority and private action. The result is a legal Gordian knot, one that strands victims of police vigilantism in a quagmire of uncertainty and often leaves the very concept of police accountability beyond reach.

Correcting this misalignment requires a radical reconceptualization of police authority and existing accountability frameworks to address the phenomenon of identity shopping and end police vigilantism. This Article proposes reinterpreting the state action doctrine to break down the dichotomy between state and non-state action. It also suggests implementing comprehensive statutory regulations to constrain police identity shopping.18 18.See infra Section III.B.Show More Ultimately, it challenges us to consider whether the entrenched vigilante origins of policing may necessitate a fundamental reevaluation, or even abolition, of the institution of policing itself.19 19.For discussions of fundamentally reevaluating or abolishing policing, see, for example, Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 125 (2021); Shawn E. Fields, The Fourth Amendment Without Police, 90 U. Chi. L. Rev. 1023, 1052, 1082 (2023); Sandy Hudson, Building a World Without Police, 69 UCLA L. Rev. 1646, 1649 (2023); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1448 (2022); Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1203 (2022); V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1532–34 (2019); Brandon Hasbrouck, Reimagining Public Safety, 117 Nw. U. L. Rev. 685, 692 (2022); Tiffany Yang, “Send Freedom House!”: A Study in Police Abolition, 96 Wash. L. Rev. 1067, 1077–79 (2021); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist Framework, 68 UCLA L. Rev. 1544, 1550–51 (2021); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1842 (2020) [hereinafter Akbar, An Abolitionist Horizon]; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 460 (2018) [hereinafter Akbar, Toward a Radical Imagination of Law].Show More

In addressing these points and the challenging terrain of the police’s dual identity, my argument proceeds in three Parts. Part I traces the historical evolution of policing from its vigilante roots to its status as a formal state apparatus. This Part posits that despite the development of a formalized legal status, police often employ a dual identity, combining public servant duties with private discretion in a way that hearkens back to policing’s vigilante origins. Understanding this development is pivotal to identifying how the vestiges of vigilantism continue to influence modern policing practices.

Part II introduces the novel concept of identity shopping. It delves deeper into the practice, arguing that identity shopping results in a form of shadow vigilantism within the modern police force. This Part further demonstrates how our legal system has sanctioned identity shopping across various policing forms, including on-duty and off-duty policing, private policing, and citizen’s arrests. This juxtaposition of sanctioned law enforcement with remnants of vigilante conduct presents a distinct challenge to conventional structures of government oversight and legal accountability.

Part III proposes a radical rethinking of the dual identities of police officers in order to address this unique challenge. It argues that this legal characterization of police officers is a significant design flaw in the frameworks of police accountability and proposes strategies to address this issue, including a way to reconceptualize the state action doctrine, qualified immunity, statutory reforms, and police abolition.

Ultimately, scrutinizing the practices of identity shopping and shadow vigilantism reveals a critical gap in our understanding of policing. It raises fundamental questions about the role of police in a democratic society, the nature and limits of state authority, and the responsibilities of those who wield it. It grapples with the complex dynamics between formal policing roles and individual discretion, revealing the implications for governance and individual rights. And it contributes to the abolitionist discourse by demonstrating that modern policing and the legal frameworks that govern it continue to permit the unchecked use of state-sanctioned violence akin to the vigilantes of the early republic or the street vigilantes of today.

  1.  These statutes, often codifications of common law, are abundant across jurisdictions. See infra Section II.B. For the concept and history of these statutes and consequent arrests, see generally Ashish Valentine, What Is the Citizen’s Arrest Law at the Heart of the Trial over Ahmaud Arbery’s Death?, NPR (Oct. 26, 2021, 10:39 AM), https://www.npr.org/2021/10/26/‌1048398618/what-is-the-citizens-arrest-law-in-the-trial-over-ahmaud-arberys-death [https://‌perma.cc/5L5V-SXAK]; Chad Flanders, Raina Brooks, Jack Compton & Lyz Riley, The Puzzling Persistence of Citizen’s Arrest Laws and the Need to Revisit Them, 64 How. L.J. 161 (2020); Ira P. Robbins, Vilifying the Vigilante: A Narrowed Scope of Citizen’s Arrest, 25 Cornell J.L. & Pub. Pol’y 557 (2016); Kimberly Kessler Ferzan, Response, Taking Aim at Pointing Guns? Start with Citizen’s Arrest, Not Stand Your Ground: A Reply to Joseph Blocher, Samuel W. Buell, Jacob D. Charles and Darrell A. H. Miller, Pointing Guns, 99 Texas L. Rev. 1172 (2021), 100 Tex. L. Rev. Online 1 (2021) (surveying citizen’s arrest laws around the country). ↑
  2.  U.S. Const. amend. IV. ↑
  3.  This fictional example is not so fictional, as variations of it have come up in countless cases across jurisdictions. See, e.g., State v. Phoenix, 428 So. 2d 262, 265 (Fla. Dist. Ct. App. 1982) (“In addition to any official power to arrest, police officers also have a common law right as citizens to make so-called citizen’s arrests.”); State v. Slawek, 338 N.W.2d 120, 121 (Wis. Ct. App. 1983) (“An extensive line of cases from other states, however, upholds the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest when the place of arrest authorizes a private person to make a citizen’s arrest under the same circumstances.”); State ex rel. State v. Gustke, 516 S.E.2d 283, 290 (W. Va. 1999) (“Even if the officers were without statutory arrest powers as policemen, they retained power as citizens to make an arrest . . . .” (quoting Dodson v. State, 381 N.E.2d 90, 92 (Ind. 1978))); Commonwealth v. Harris, 415 N.E.2d 216, 220 (Mass. App. Ct. 1981) (citing with approval “[a]n extensive line of cases from other states uphold[ing] the validity of an extraterritorial arrest made by a police officer who lacked the official authority to arrest where the place of arrest authorizes a private person to make a ‘citizen’s arrest’ under the same circumstances”). ↑
  4.  See, e.g., Budnick v. Barnstable Cnty. Bar Advocs., Inc., No. 92-1933, 1993 WL 93133, at *3 (1st Cir. Mar. 30, 1993) (“But, ‘a police officer, while unable to act as an officer in an adjoining jurisdiction, does not cease to be a citizen in that jurisdiction . . . .’” (quoting Commonwealth v. Dise, 583 N.E.2d 271, 274 (Mass. App. Ct. 1991))); State v. Miller, 896 P.2d 1069, 1070 (Kan. 1995) (“An officer who makes an arrest without a warrant outside the territorial limits of his or her jurisdiction must be treated as a private person. The officer’s actions will be considered lawful if the circumstances attending would authorize a private person to make the arrest.”). ↑
  5.  See, e.g., United States v. Layne, 6 F.3d 396, 398–99 (6th Cir. 1993) (finding arrest made by sheriff outside his geographical jurisdiction valid under private citizen’s arrest statute and thus did not violate Fourth Amendment); State v. Furr, 723 So. 2d 842, 845 (Fla. Dist. Ct. App. 1998) (“[T]he trial court erred by concluding that a citizen’s arrest is nullified where the officer, acting outside of his jurisdiction, uses a marked police car, and otherwise announces his official position.”). ↑
  6.  Unfortunately, this is another not-so-fictional example. For a similar case, see State v. Peraza, 259 So. 3d 728, 729–30 (Fla. 2018). ↑
  7.  Id. at 733. ↑
  8.  See infra Section II.A. ↑
  9.  See infra Section II.B. ↑
  10.  See infra Section I.A. ↑
  11.  See Anna Lvovsky, The Judicial Presumption of Police Expertise, 130 Harv. L. Rev. 1995, 2004–05 (2017). ↑
  12.  See infra Section II.B. ↑
  13.  See id. ↑
  14.  See Paul H. Robinson, The Moral Vigilante and Her Cousins in the Shadows, 2015 U. Ill. L. Rev. 401, 453. Robinson juxtaposes “shadow vigilantism” with “classic vigilantism.” Id. at 404. Unlike classic vigilantism, which involves explicitly unlawful or unauthorized action, shadow vigilantism refers to the less obvious and potentially more damaging ways individuals may resist and subvert the legal system. Id. at 453. To be sure, for several scholars vigilantism connotes illegality, but the way this paper defines vigilantism through the use of the term “shadow vigilantism” is wider and can include lawfully authorized activity. See Ekow N. Yankah, Deputization and Privileged White Violence, 77 Stan. L. Rev. (forthcoming 2025) (manuscript at 3–5) (on file with author) (distinguishing between vigilantism and deputization); Regina Bateson, The Politics of Vigilantism, 54 Compar. Pol. Stud. 923, 925–27 (2021) (providing various conceptions of vigilantism). ↑
  15.  See infra Section II.B; see, e.g., Laughlin v. Olszewski, 102 F.3d 190, 192 & n.1 (5th Cir. 1996); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999); Swiecicki v. Delgado, 463 F.3d 489, 490–91 (6th Cir. 2006); Morris v. Dillard Dep’t Stores, Inc., 277 F.3d 743, 746–47 (5th Cir. 2001); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423, 1427–28 (10th Cir. 1984). ↑
  16.  See infra Part III. ↑
  17.  See infra Section III.A. ↑
  18.  See infra Section III.B. ↑

  19.  For discussions of fundamentally reevaluating or abolishing policing, see, for example, Jessica M. Eaglin, To “Defund” the Police, 73 Stan. L. Rev. Online 120, 125 (2021); Shawn E. Fields, The Fourth Amendment Without Police, 90 U. Chi. L. Rev. 1023, 1052, 1082 (2023); Sandy Hudson, Building a World Without Police, 69 UCLA L. Rev. 1646, 1649 (2023); Benjamin Levin, Criminal Law Exceptionalism, 108 Va. L. Rev. 1381, 1448 (2022); Jamelia Morgan, Responding to Abolition Anxieties: A Roadmap for Legal Analysis, 120 Mich. L. Rev. 1199, 1203 (2022); V. Noah Gimbel & Craig Muhammad, Are Police Obsolete? Breaking Cycles of Violence Through Abolition Democracy, 40 Cardozo L. Rev. 1453, 1532–34 (2019); Brandon Hasbrouck, Reimagining Public Safety, 117 Nw. U. L. Rev. 685, 692 (2022); Tiffany Yang, “Send Freedom House!”: A Study in Police Abolition, 96 Wash. L. Rev. 1067, 1077–79 (2021); Marbre Stahly-Butts & Amna A. Akbar, Reforms for Radicals? An Abolitionist Framework, 68 UCLA L. Rev. 1544, 1550–51 (2021); Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781, 1842 (2020) [hereinafter Akbar, An Abolitionist Horizon]; Amna A. Akbar, Toward a Radical Imagination of Law, 93 N.Y.U. L. Rev. 405, 460 (2018) [hereinafter Akbar, Toward a Radical Imagination of Law]. ↑

Indiscriminate Data Surveillance

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Working hand-in-hand with the private sector, largely in a regulatory vacuum, policing agencies at the federal, state, and local levels are acquiring and using vast reservoirs of personal data. They are doing so indiscriminately, which is to say without any reason to suspect the individuals whose data they are collecting are acting unlawfully. And they are doing it in bulk. People are unlikely to want this personal information shared with anyone, let alone law enforcement. And yet today, private companies are helping law enforcement gather it by the terabyte. On all of us.

Our thesis is straightforward: the unregulated collection of this data must cease, at least until basic rule-of-law requisites are met. Any collection must be authorized by democratically accountable bodies. It must be transparent. It must be based on clear proof of efficacy (that a legitimate purpose actually is being served). There must be protections that minimize or avoid harms to individuals and society. And, of course, there must be judicial review of whether indiscriminate bulk data collection is constitutional, either at all or with regard to specific programs.

The basis for this thesis is a first-of-its-kind review of instances, from the dawn of the Information Age, in which Congress acted on these very issues. Much of that history involves indiscriminate collection of data on Americans for reasons of national and domestic security, because national security represents the outer bounds of what law enforcement and intelligence agencies are permitted to do, and much of what is done in the name of national security is inappropriate for domestic policing. Yet, in incident after incident, Congress made clear that indiscriminate bulk collection of Americans’ data is unacceptable, unlawful, and of dubious constitutionality. To the extent that such collection was permitted at all, Congress demanded the very requisites specified above. Today’s indiscriminate bulk surveillance by federal, state, and local policing agencies violates virtually all of these congressionally established norms. It should cease, at least until the rule-of-law requisites are met.

Introduction

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which allowed states to criminalize abortion and which generated huge controversy that ripples today, also directed attention to a seemingly incongruous matter: personal data.1 1.142 S. Ct. 2228, 2242–43 (2022); Philip Bump, The Patterns of Out-of-State Abortions, Wash. Post (Sept. 1, 2023, 4:48 PM), https://www.washingtonpost.com/politics/2023/09/01/‌patterns-out-of-state-abortions/ [https://perma.cc/F8ZP-36H2].Show More To be specific, apps used to track menstrual cycles and other details of individuals’ intimate lives.2 2.Rina Torchinsky, How Period Tracking Apps and Data Privacy Fit into a Post-Roe v. Wade Climate, NPR (June 24, 2022, 3:06 PM), https://www.npr.org/2022/05/10/1097482967/‌roe-v-wade-supreme-court-abortion-period-apps [https://perma.cc/4XCD-WTWQ]; Sara Morrison, Should I Delete My Period App? And Other Post-Roe Privacy Questions, Vox (July 6, 2022, 12:50 PM), https://www.vox.com/recode/2022/7/6/23196809/period-apps-roe-dobbs‌-data-privacy-abortion [https://perma.cc/3UCU-L2M8].Show More The fear motivating the attention was that prosecutors would obtain the data in an attempt to prove that women had indeed aborted a fetus.3 3.Jay Edelson, Post-Dobbs, Your Private Data Will Be Used Against You, Bloomberg News (Sept. 22, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/post-dobbs-your-pr‌ivate-data-will-be-used-against-you [https://perma.cc/E23W-DNMK]; see also Leah R. Fowler & Michael R. Ulrich, Femtechnodystopia, 75 Stan. L. Rev. 1233, 1237–38 (2023) (discussing how prosecutors and government officials could leverage consumer data to enforce abortion prohibitions or criminally prosecute users).Show More

This alarm was entirely justifiable—prosecutors already have sought private data for abortion prosecutions.4 4.Cat Zakrzewski, Pranshu Verma & Claire Parker, Texts, Web Searches About Abortion Have Been Used to Prosecute Women, Wash. Post (July 3, 2022, 9:20 AM), https://www.wash‌ingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/ [https://perma.cc/‌UUB7-H9NS].Show More Still, there was something deeply naive about the sudden attention to law enforcement’s collection of personal digital data.5 5.Ryan Phillips, Infant Death Case Heading Back to Grand Jury, Starkville Daily News (May 9, 2019), https://www.starkvilledailynews.com/infant-death-case-heading-back-to-gran‌d-jury/article_cf99bcb0-71cc-11e9-963a-eb5dc5052c92.html [https://perma.cc/D3Z9-39‌NR]; Grace Oldham & Dhruv Mehrotra, Facebook and Anti-Abortion Clinics Are Collecting Highly Sensitive Info on Would-Be Patients, The Markup (June 15, 2022, 6:00 AM), https://th‌emarkup.org/pixel-hunt/2022/06/15/facebook-and-anti-abortion-clinics-are-collecting-highly‌-sensitive-info-on-would-be-patients [https://perma.cc/379S-92YA]. For Supreme Court cases expressing protection for intimate privacy, see Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (identifying a right to privacy for couples seeking to procure contraception); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the First and Fourth Amendments protect the possession of “obscene material”).Show More For some time now, law enforcement has been gaining access to the most minute details of our personal lives: where we go and stay; with whom we text and chat; what we read and search; what we say to digital assistants; what medical advice we seek; and which health providers we see.6 6.Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age 58–63 (2022); see infra Part I.Show More At volume, all data becomes intimate data, and today, law enforcement is gathering it up by the terabyte.7 7.Gabby Miller, Transcript: Senate Hearing on Protecting Americans’ Privacy and the AI Accelerant, Tech Pol’y Press (July 12, 2024) (statement of Ryan Calo), https://www.techpol‌icy.press/transcript-senate-hearing-on-protecting-americans-privacy-and-the-ai-accelerant/ [https://perma.cc/Z87R-JXR5] (“AI is increasingly able to derive the intimate from the available.”); Alicia Solow-Niederman, Information Privacy and the Inference Economy, 117 Nw. U. L. Rev. 357, 361 (2022) (exploring the implications of machine learning tools’ ability to derive personal data from “aggregations of seemingly innocuous data”); see infra Part I.Show More On each and every one of us.

What the abortion decision did was bring the spotlight of public attention to what already is an extensive and deepening relationship between law enforcement and private actors, which has enabled indiscriminate data surveillance, in bulk. It’s no secret that private actors collect vast amounts of data on each of us.8 8.See, e.g., Carly Page, Hotel Giant Marriott Confirms Yet Another Data Breach, TechCrunch (July 6, 2022, 7:21 AM), https://techcrunch.com/2022/07/06/marriott-breach-ag‌ain/ [https://perma.cc/Q2HF-8P5S]; Andrew Leahey, Equifax, Experian Must Pay More Than Pennies for Data Breaches, Bloomberg Tax (Feb. 21, 2023, 4:45 AM), https://news.bloomber‌gtax.com/tax-insights-and-commentary/equifax-experian-must-pay-more-than-pennies-for-data-breaches [https://perma.cc/Q2HZ-HG5B].Show More What is less widely known, but essential to understand, is the full extent to which that data can be, is, and will be shared with agents of the state. Some twenty years ago, Michael D. Birnhack and Niva Elkin-Koren called this “The Invisible Handshake.”9 9.Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, Va. J.L. & Tech., Summer 2003, at 1.Show More Today, it is a full embrace.

This Article is about the acquisition by law enforcement of personal data indiscriminately and in bulk. “Indiscriminately” means it is acquired without the sort of lawful predicate—such as probable cause or reasonable suspicion—that typically limits when law enforcement may target individuals. “In bulk” captures how the technology and economics of the digital age enable policing agencies to gather this data on all of us, or any subset it chooses.10 10.On the ability to collect data in bulk and the economics of storing it, see Viktor Mayer-Schönberger & Kenneth Cukier, Big Data: A Revolution That Will Transform How We Live, Work, and Think 6–12 (2013).Show More Today, policing agencies are acquiring access to the personal data of vast swaths of society, without regard to whether the targets of data acquisition are suspected of any unlawful conduct whatsoever. And they are using artificial-intelligence-driven tools to develop vivid pictures of who we are, what we do, where we go, what we spend, with whom we communicate, and much, much more.11 11.See infra Part I.Show More Make no mistake, the state has each of us under surveillance, and the extent and cohesiveness of that surveillance are growing by the day.

Although we know for certain this access to vast amounts of personal data is happening, far too few of the details are public because law enforcement and private parties are engaged in deliberate evasion to prevent our knowing. Through misleading procurement practices, memoranda of understanding (“MOU”) mutually pledging nondisclosure, parallel construction (the act of hiding from courts how law enforcement gets its leads), and more, public-private partners effectively manage to assemble vast pools of data outside the public eye, thereby avoiding any oversight.12 12.Id.Show More

What this Article demonstrates is that this sort of gathering of massive reservoirs of personal data about innocent people (to use a shorthand for those for whom there is no suspicion of wrongdoing) has been condemned by Congress and the broader society it represents time and again, and justifiably so. From the birth of the age of computerization, to the deeply problematic and nefarious conduct of government agents during COINTELPRO, to the secret collections of data by the National Security Agency as revealed by Edward Snowden, when Congress has been forced to act on this sort of indiscriminate data collection, it has ordered this practice to cease.13 13.See infra Part II.Show More It is true, as we explain in Part III, that members of Congress, as well as state and local legislators, prefer to duck confrontations with law enforcement whenever they can—and they certainly do. But when compelled to act, Congress has made clear that the unregulated gathering of computerized dossiers endangers personal privacy and security, and risks unchecked government power. Such surveillance has chilled and destroyed constitutional rights exercised in the service of social change, has fallen particularly heavily on vulnerable and marginalized minorities, and has put way too much power in the hands of executive branch actors.14 14.Citron, supra note 6, at xvi.Show More

Still, to be clear—and this is what makes the issue a difficult one—law enforcement access to digital reservoirs may serve important purposes. Ever since the advent of the internet, crime has moved online. From those who steal our identities and empty our bank accounts, to those who threaten and stalk us, to those who would terrorize us or foment insurrection, crime is online and is itself driven by access to personal data.15 15.See, e.g., Luke Barr, Americans Lost $10.3 Billion to Internet Scams in 2022, FBI Says, ABC News (Mar. 13, 2023, 4:27 PM), https://abcnews.go.com/Business/americans-lost-103-billion-internet-scams-2022-fbi/story?id=97832789 [https://perma.cc/7DQP-U9ZP]; Joshua Barlow, Naval Officer Charged with Harassment, Cyberstalking, Identity Theft Against Ex-Wife, WTOP News (Oct. 24, 2022, 4:59 AM), https://wtop.com/montgomery-county/2022/10‌/naval-officer-charged-with-harassment-cyberstalking-identity-theft-against-ex-wife/ [https://perma.cc/6SP2-MBGR]; Farah Pandith & Jacob Ware, Teen Terrorism Inspired by Social Media Is on the Rise. Here’s What We Need to Do., NBC News (Mar. 22, 2021, 4:30 AM), https://www.nbcnews.com/think/opinion/teen-terrorism-inspired-social-media-ris‌e-here-s-what-we-ncna1261307 [https://perma.cc/V62E-GVYS]; Rebecca Heilweil & Shirin Ghaffary, How Trump’s Internet Built and Broadcast the Capitol Insurrection, Vox (Jan. 8, 2021, 5:00 PM), https://www.vox.com/recode/22221285/trump-online-capitol-riot-far-right-parler-twitter-facebook [https://perma.cc/52NQ-5YZX].Show More Law enforcement needs to use digital tools of some sort to keep us safe from wrongdoing, and those may well require access to personal data—though even yet it remains open to question whether that should include the data of individuals suspected of nothing.

Society’s goal should be a reasoned balance, but things now are seriously out of kilter. Working hand-in-hand with the private sector, policing agencies at the federal, state, and local levels are indiscriminately accessing vast reservoirs of personal data.16 16.See infra Part I.Show More In the absence of regulation, this has made suspects of us all, and invited harms of the most grievous sort.17 17.Id.Show More

Our thesis is straightforward: the current state of affairs must end. This is not necessarily to call for a ban on all indiscriminate bulk data-collection partnerships. As we’ve indicated, there are reasons some degree of collection might be advisable for safety’s sake. Rather, what we do here is derive from congressional debates and critical legislative actions taken since the dawn of the Information Age a set of very basic rule-of-law requisites that must be met before indiscriminate data surveillance can continue. Collection must be democratically authorized, not left to policing agencies alone to decide. The fact of collection must be transparent, even if some particulars are not, for security reasons. There must be a clear showing that collection protects public safety. And there must be safeguards in place—among them antidiscrimination, minimization, and retention limits—to mitigate or eliminate a number of obvious harms to privacy, personal security, equality, and overweening state power. And all of this must be open to constitutional scrutiny.18 18.The recent guidance to federal agencies by the Office of Management and Budget (“OMB”) regarding the use of artificial intelligence is greatly consistent with much of what we argue for here. See Proposed Memorandum from Shalanda D. Young, Dir., Off. of Mgmt. & Budget, to the Heads of Exec. Dep’ts & Agencies, Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence 10, 16, 18, 22 (2023) (requiring public input, transparency, a showing of efficacy, and detailed safeguards, with hopefully narrow exceptions for some law enforcement and national security activity); accord Joy Buolamwini & Barry Friedman, How the Federal Government Can Rein in A.I. in Law Enforcement, N.Y. Times (Jan. 2, 2024), https://www.nytimes.com/2024/01/02/opinion/‌ai-police-regulation.html [https://perma.cc/4U5V-UVSJ] (acknowledging OMB’s requirements and urging closing of loopholes).Show More We are skeptical that much of today’s indiscriminate bulk public-private surveillance will satisfy these tests. But our overarching point is that indiscriminate bulk collection of our data behind our backs must come to a halt, and if it occurs at all, it must proceed only by the terms set after open and transparent democratic debate. This is what congressional action, when it has occurred, teaches us.

As we write, it is an understatement to say these issues are at the forefront of national politics.19 19.Thanks to Noah Chauvin for enhancing our list of examples.Show More Congress is embroiled in debates over the limits on policing agencies purchasing personal data from data brokers.20 20.In April of 2024, the House of Representatives passed the Fourth Amendment Is Not For Sale Act (“FAINFSA”) by a vote of 219-199. See H.R. 4639—Fourth Amendment Is Not For Sale Act, Congress.gov, https://www.congress.gov/bill/118th-congress/house-bill/4639/all-ac‌tions [https://perma.cc/Z8XL-6JC7] (last visited Sept. 7, 2024). This bill would flatly prohibit some of the practices we describe. Joseph Cox, Bill That Would Stop the Government Buying Data Without a Warrant Passes Key Hurdle, Vice (July 19, 2023, 11:19 AM), https://www.vic‌e.com/en/article/wxjgd4/fourth-amendment-is-not-for-sale-act-passes-committee [https://per‌ma.cc/GVB6-6KK7]. The Protect Liberty and End Warrantless Surveillance Act, which incorporates FAINSFA in full, passed through the House Judiciary Committee by a vote of 35-2. H.R. 6570, 118th Cong. (2023); see also H.R. 6570—Protect Liberty and End Warrantless Surveillance Act of 2023, Congress.gov, https://www.congress.gov/bill/118th-co‌ngress/house-bill/6570/all-actions-without-amendments [https://perma.cc/3XJS-Y9XC] (last visited May 15, 2024). The bipartisan, bicameral Government Surveillance Reform Act exceeds even FAINFSA in the information it would protect. H.R. 6262, 118th Cong. (2023); S. 3234, 118th Cong. (2023). The House of Representatives, by voice vote, adopted the Davidson-Jacobs Amendment to the National Defense Authorization Act, which would have prohibited the Department of Defense from purchasing U.S. persons’ protected information without a warrant. H.Amdt.256 to H.R. 2670, Congress.gov (July 14, 2023), https://www.cong‌ress.gov/amendment/118th-congress/house-amendment/256/text?s=3&r=5 [https://perma.cc/‌U8KM-X75W]. For an overview of the threat to privacy that data brokers present and an evaluation of certain legislative proposals, see Emile Ayoub & Elizabeth Goitein, Closing the Data Broker Loophole, Brennan Ctr. for Just. (Feb. 13, 2024), https://www.brennancenter.org/‌our-work/research-reports/closing-data-broker-loophole [https://perma.cc/S3H5-5T7U].Show More Section 702 of the Foreign Intelligence Surveillance Act recently was reauthorized, but only for two years rather than the typical five, and it encountered an especially rocky road in light of recent revelations of FBI overreach.21 21.See Biden Signs Reauthorization of Surveillance Program into Law Despite Privacy Concerns, NPR (Apr. 20, 2024, 9:54 PM), https://www.npr.org/2024/‌04/20/1246‌076114/sen‌ate-passes-reauthorization-surveillance-program-fisa [https://perma.cc/M5XF-LV5R] (“The reauthorization faced a long and bumpy road to final passage Friday after months of clashes between privacy advocates and national security hawks pushed consideration of the legislation to the brink of expiration.”); see also Preston Marquis & Molly E. Reynolds, House Passes Section 702 Reauthorization, Lawfare (Apr. 16, 2024, 12:59 PM), https://www.lawfaremedia‌.org/article/house-passes-section-702-reauthorization [https://perma.cc/78RP-RGB8] (describing the two-year reauthorization as a “key concession” to ensure the bill’s passage).Show More In the course of reauthorization, Section 702 proponents adopted some reforms and promised to systematically consider more.22 22.On the nature of the reforms, see infra notes 252–56. A commission was established to “consider ongoing reforms.” Reforming Intelligence and Securing America Act, Pub. L. No. 118-49, § 18(c), 138 Stat. 885 (2024) (codified as amended at 50 U.S.C. § 1881a); see also David Aaron, Unpacking the FISA Section 702 Reauthorization Bill, Just Sec. (Apr. 18, 2024), https://www.justsecurity.org/94771/unpacking-the-fisa-section-702-reauthorization-bill/ [https://perma.cc/XE4T-MVM3]. The Chair of the Senate Intelligence Committee, Senator Mark Warner, acknowledged drafting problems with the reauthorization bill and promised to work towards improvements this summer. Noah Chauvin, Too Much Power for Spy Agencies, Brennan Ctr. for Just. (Apr. 23, 2024), https://www.brennancenter.org/our-work/analysis-opi‌nion/too-much-power-spy-agencies [https://perma.cc/J438-M9P9]. One upshot of the fight was that the FISA reform bill will come to the House floor for passage by simple majority, rather than requiring a two-thirds vote as leadership originally had planned. See Marquis & Reynolds, supra note 21.Show More The Office of the Director of National Intelligence (“ODNI”) recently declassified a report on the Intelligence Community’s use of commercially available information, the most salient part of which is a recognition that indiscriminate bulk collection of information involves highly personal information and that claiming its collection avoids constitutional or other concerns simply because it is “publicly” or “commercially” available is unpersuasive. ODNI called for top-to-bottom reconsideration of the issue.23 23.Off. of the Dir. of Nat’l Intel., Senior Advisory Grp., Panel on Commercially Available Info., Report to the Director of National Intelligence 2 (Jan. 27, 2022) [hereinafter ODNI Report], https://www.dni.gov/files/ODNI/documents/assessments/ODNI-Declassified-Repor‌t-on-CAI-January2022.pdf [https://perma.cc/69EZ-2NK2].Show More The Federal Trade Commission brought an action in January of 2024 against data broker X-Mode Social for selling sensitive data obtained from phones without customer consent.24 24.Press Release, Fed. Trade Comm’n, FTC Order Prohibits Data Broker X-Mode Social and Outlogic from Selling Sensitive Location Data (Jan. 9, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/01/ftc-order-prohibits-data-broker-x-mode-social-outlogic-selling-sensitive-location-data [https://perma.cc/2RNF-JBTP]. On May 1, 2024, the FTC released its final order against InMarket in which it prohibited the data aggregator from sharing or selling sensitive location data for advertising and marketing purposes. Press Release, Fed. Trade Comm’n, FTC Finalizes Order with InMarket Prohibiting It from Selling or Sharing Precise Location Data (May 1, 2024), https://www.ftc.gov/news-events/news/pre‌ss-releases/2024/05/ftc-finalizes-order-inmarket-prohibiting-it-selling-or-sharing-precise-loc‌ation-data [https://perma.cc/B6XR-578H].Show More That same month, Senator Ron Wyden forced the Intelligence Community to reveal it was buying Americans’ location data by putting a hold on the nominee for Director of the National Security Agency until this information became public.25 25.See Letter from Ron Wyden, U.S. Sen., to Avril Haines, Dir. of Nat’l Intel. (Jan. 25, 2024), https://www.wyden.senate.gov/imo/media/doc/signed_wyden_letter_to_dni_re_nsa_p‌urchase_of_domestic_metadata_and_ftc_order_on_data_brokers_with_attachments.pdf [https://perma.cc/EHJ8-69ZH]; Charlie Savage, N.S.A. Buys Americans’ Internet Data Without Warrants, Letter Says, N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/2024/‌01/25/us/politics/nsa-internet-privacy-warrant.html [https://perma.cc/5GVM-RXXR].Show More

Despite the apparent urgency of these issues, little (if any) progress is being made, in large part—we believe—because legislators are simply uncertain how to proceed. That is where we seek to intervene. Relying on past congressional actions, we provide a roadmap for Congress, as well as state and local legislative bodies, as to the minimum requirements that must be in place before indiscriminate bulk data collection can continue. (And even then, as we say, there must be judicial review.)

Although our aspiration here is to suggest a path toward sound regulation, we are quite certain that absent the very basic rule-of-law requisites identified repeatedly by Congress, courts should invalidate all such indiscriminate collection as unconstitutional. It is difficult to understand how a court could uphold such activity given that, for the most part, we don’t even know what actually is happening. That is no doubt why courts, confronted with these issues, have tended to dispose of them on justiciability or other grounds rather than reaching the merits.26 26.See, e.g., ACLU v. Clapper, 785 F.3d 787, 823–24 (2d Cir. 2015) (declining to address whether the NSA’s bulk data collection pursuant to Section 215 violated the Fourth Amendment); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402, 414, 418 (2013) (dismissing for want of Article III standing the claim that § 1881a of the Foreign Intelligence Surveillance Act of 1978 is unconstitutional); Schuchardt v. President of the United States, 802 F. App’x 69, 76–77 (3d Cir. 2020); Obama v. Klayman, 800 F.3d 559, 562 (D.C. Cir. 2015).Show More Still, it is unacceptable for courts simply to turn a blind eye to the degree of surveillance that is occurring. Our review of congressional debates, coupled with a constitutional argument one of us has advanced elsewhere, provides ample basis for striking down indiscriminate bulk data surveillance that is occurring in the absence of any regulation and without anything in the way of serious guardrails.27 27.See Barry Friedman, Lawless Surveillance, 97 N.Y.U. L. Rev. 1143, 1204–14 (2022) (providing a constitutional argument of precisely this nature).Show More

On the other hand, the appropriate time to address the constitutionality of indiscriminate bulk data collection in the context of a specific legislative program is when the contours of that legislative program are known, including factors such as any evidence of the utility of the data collected, and the safeguards in place to protect individual interests.28 28.In Carpenter v. United States, the Supreme Court barred warrantless collection of over six days of cell site location information, despite such collection ostensibly being permitted by the Stored Communications Act. 138 S. Ct. 2206, 2216–19 (2018). But the Court went no further. In that decision, the Chief Justice expressed the need to move cautiously, lest the Court “embarrass the future.” Id. at 2220 (quoting Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944)). Actual legislation will provide the Court with an opportunity to evaluate the specific protections it embodies, as well as government arguments about the utility of the data collected. See, e.g., Berger v. New York, 388 U.S. 41, 44 (1967) (evaluating constitutionality of wiretapping in context of New York’s law); see infra notes 332–40 and accompanying text (discussing how decisions like Berger have led to further legislation).Show More

Part I of this Article sets the stage by explaining that indiscriminate bulk data collection by domestic policing agencies is rampant and expanding at warp speed due to deepening public-private data partnerships. Section II.A details the profound data grab that is occurring and explains how, with the assistance of private helpers, law enforcement is accomplishing what it likely could not on its own. Section II.B makes the case that what is occurring may be but the tip of the iceberg. Law enforcement and their private partners are engaging in evasive (and dubiously constitutional) tactics to keep secret the fact that any of this is happening, making it impossible to know the true extent of the indiscriminate data surveillance.

Part II is the heart of our argument. It documents that when Congress has been forced to confront indiscriminate bulk data collection about innocent individuals by intelligence and policing agencies, it has registered sharp disapproval; Congress typically has shut down the collection. To the extent that the legislature allowed any mass access to data, the data was safeguarded with protections that often were understood to be foundational and perhaps required by the Constitution. To be clear, Congress has not always acted in the face of complaints about mass collection of private data. Public choice theory confirms what our own eyes see—caught between claims of national security and law enforcement imperatives (on the one hand), and popular unhappiness about private data collection (on the other), as well as its own keen awareness of the dangers, Congress often bends to pressure. But when Congress has been forced to act, indiscriminate bulk data collection about Americans suspected of nothing consistently has been deemed unlawful, of dubious constitutionality, and has been rejected. Congress has insisted instead on a set of quite obvious basic prerequisites, grounded in the rule of law. Part II traces this history up to the present day. Much of what we discuss in Part II concerns national security, which serves as a notable benchmark, because all concerned agreed that while certain surveillance activities may be permissible to protect national security, they are simply impermissible for domestic purposes.

Part III, relying on congressional insights of the past, turns to prescription for the present. Section III.A summarizes the rule-of-law requisites that surfaced repeatedly in congressional debates and actions, making abundantly clear that the ongoing domestic law enforcement data grab detailed in Part I violates these requisites. Indiscriminate data collection should not occur at all unless it is democratically authorized, transparent, based upon demonstrated efficacy, and bounded by essential safeguards to prevent things like discrimination, risks to personal security, and the accumulation of overweening governmental power. This goes for data collection conducted for the use of policing agencies at every level of government, federal, state, tribal, and local. Section III.B then tackles the hard question—which is how to make this happen in light of the game of hot potato that keeps both the judiciary and legislative bodies from doing their regulatory and adjudicative jobs. That Section identifies a set of mechanisms to address the problem. One is what historically has been a game of judicial / legislative give-and-take that allows each branch to push the other toward sensible resolutions. Another is a set of sunsets—coupled with disclosure requirements—to ensure periodic democratic review and reevaluation of data collection efforts to, among other things, weigh the efficacy and value of such collections against the intrusions they involve. The third is an intriguing, ongoing intercontinental game of chicken between the European Union and the United States that might accomplish the same, at least at the federal level.

Data, in our world, is a benefit and a curse. If we are not careful, the curse will trump the benefits in too many of our lives. Even if the threat is not immediately obvious, allowing government access to this much information about all of us is a prescription for tyranny. Eyes were opened by the idea that government could not only criminalize our reproductive lives but pry into our virtual and physical bedrooms and bathrooms to discover any criminality. That particular fear is justified, but the threats extend far beyond it. It is essential that we do something, now, about policing and intelligence agency’s massive indiscriminate collection of our personal data.

  1.  142 S. Ct. 2228, 2242–43 (2022); Philip Bump, The Patterns of Out-of-State Abortions, Wash. Post (Sept. 1, 2023, 4:48 PM), https://www.washingtonpost.com/politics/2023/09/01/‌patterns-out-of-state-abortions/ [https://perma.cc/F8ZP-36H2]. ↑
  2.  Rina Torchinsky, How Period Tracking Apps and Data Privacy Fit into a Post-Roe v. Wade Climate, NPR (June 24, 2022, 3:06 PM), https://www.npr.org/2022/05/10/1097482967/‌roe-v-wade-supreme-court-abortion-period-apps [https://perma.cc/4XCD-WTWQ]; Sara Morrison, Should I Delete My Period App? And Other Post-Roe Privacy Questions, Vox (July 6, 2022, 12:50 PM), https://www.vox.com/recode/2022/7/6/23196809/period-apps-roe-dobbs‌-data-privacy-abortion [https://perma.cc/3UCU-L2M8]. ↑
  3.  Jay Edelson, Post-Dobbs, Your Private Data Will Be Used Against You, Bloomberg News (Sept. 22, 2022, 4:00 AM), https://news.bloomberglaw.com/us-law-week/post-dobbs-your-pr‌ivate-data-will-be-used-against-you [https://perma.cc/E23W-DNMK]; see also Leah R. Fowler & Michael R. Ulrich, Femtechnodystopia, 75 Stan. L. Rev. 1233, 1237–38 (2023) (discussing how prosecutors and government officials could leverage consumer data to enforce abortion prohibitions or criminally prosecute users). ↑
  4.  Cat Zakrzewski, Pranshu Verma & Claire Parker, Texts, Web Searches About Abortion Have Been Used to Prosecute Women, Wash. Post (July 3, 2022, 9:20 AM), https://www.wash‌ingtonpost.com/technology/2022/07/03/abortion-data-privacy-prosecution/ [https://perma.cc/‌UUB7-H9NS]. ↑
  5.  Ryan Phillips, Infant Death Case Heading Back to Grand Jury, Starkville Daily News (May 9, 2019), https://www.starkvilledailynews.com/infant-death-case-heading-back-to-gran‌d-jury/article_cf99bcb0-71cc-11e9-963a-eb5dc5052c92.html [https://perma.cc/D3Z9-39‌NR]; Grace Oldham & Dhruv Mehrotra, Facebook and Anti-Abortion Clinics Are Collecting Highly Sensitive Info on Would-Be Patients, The Markup (June 15, 2022, 6:00 AM), https://th‌emarkup.org/pixel-hunt/2022/06/15/facebook-and-anti-abortion-clinics-are-collecting-highly‌-sensitive-info-on-would-be-patients [https://perma.cc/379S-92YA]. For Supreme Court cases expressing protection for intimate privacy, see Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (identifying a right to privacy for couples seeking to procure contraception); Stanley v. Georgia, 394 U.S. 557, 568 (1969) (holding that the First and Fourth Amendments protect the possession of “obscene material”). ↑
  6.  Danielle Keats Citron, The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age 58–63 (2022); see infra Part I. ↑
  7.  Gabby Miller, Transcript: Senate Hearing on Protecting Americans’ Privacy and the AI Accelerant, Tech Pol’y Press (July 12, 2024) (statement of Ryan Calo), https://www.techpol‌icy.press/transcript-senate-hearing-on-protecting-americans-privacy-and-the-ai-accelerant/ [https://perma.cc/Z87R-JXR5] (“AI is increasingly able to derive the intimate from the available.”); Alicia Solow-Niederman, Information Privacy and the Inference Economy, 117 Nw. U. L. Rev. 357, 361 (2022) (exploring the implications of machine learning tools’ ability to derive personal data from “aggregations of seemingly innocuous data”); see infra Part I. ↑
  8.  See, e.g., Carly Page, Hotel Giant Marriott Confirms Yet Another Data Breach, TechCrunch (July 6, 2022, 7:21 AM), https://techcrunch.com/2022/07/06/marriott-breach-ag‌ain/ [https://perma.cc/Q2HF-8P5S]; Andrew Leahey, Equifax, Experian Must Pay More Than Pennies for Data Breaches, Bloomberg Tax (Feb. 21, 2023, 4:45 AM), https://news.bloomber‌gtax.com/tax-insights-and-commentary/equifax-experian-must-pay-more-than-pennies-for-data-breaches [https://perma.cc/Q2HZ-HG5B]. ↑
  9.  Michael D. Birnhack & Niva Elkin-Koren, The Invisible Handshake: The Reemergence of the State in the Digital Environment, Va. J.L. & Tech., Summer 2003, at 1. ↑
  10.  On the ability to collect data in bulk and the economics of storing it, see Viktor Mayer-Schönberger & Kenneth Cukier, Big Data: A Revolution That Will Transform How We Live, Work, and Think 6–12 (2013). ↑
  11.  See infra Part I. ↑
  12.  Id. ↑
  13.  See infra Part II. ↑
  14.  Citron, supra note 6, at xvi. ↑
  15.  See, e.g., Luke Barr, Americans Lost $10.3 Billion to Internet Scams in 2022, FBI Says, ABC News (Mar. 13, 2023, 4:27 PM), https://abcnews.go.com/Business/americans-lost-103-billion-internet-scams-2022-fbi/story?id=97832789 [https://perma.cc/7DQP-U9ZP]; Joshua Barlow, Naval Officer Charged with Harassment, Cyberstalking, Identity Theft Against Ex-Wife, WTOP News (Oct. 24, 2022, 4:59 AM), https://wtop.com/montgomery-county/2022/10‌/naval-officer-charged-with-harassment-cyberstalking-identity-theft-against-ex-wife/ [https://perma.cc/6SP2-MBGR]; Farah Pandith & Jacob Ware, Teen Terrorism Inspired by Social Media Is on the Rise. Here’s What We Need to Do., NBC News (Mar. 22, 2021, 4:30 AM), https://www.nbcnews.com/think/opinion/teen-terrorism-inspired-social-media-ris‌e-here-s-what-we-ncna1261307 [https://perma.cc/V62E-GVYS]; Rebecca Heilweil & Shirin Ghaffary, How Trump’s Internet Built and Broadcast the Capitol Insurrection, Vox (Jan. 8, 2021, 5:00 PM), https://www.vox.com/recode/22221285/trump-online-capitol-riot-far-right-parler-twitter-facebook [https://perma.cc/52NQ-5YZX]. ↑
  16.  See infra Part I. ↑
  17.  Id. ↑
  18.  The recent guidance to federal agencies by the Office of Management and Budget (“OMB”) regarding the use of artificial intelligence is greatly consistent with much of what we argue for here. See Proposed Memorandum from Shalanda D. Young, Dir., Off. of Mgmt. & Budget, to the Heads of Exec. Dep’ts & Agencies, Advancing Governance, Innovation, and Risk Management for Agency Use of Artificial Intelligence 10, 16, 18, 22 (2023) (requiring public input, transparency, a showing of efficacy, and detailed safeguards, with hopefully narrow exceptions for some law enforcement and national security activity); accord Joy Buolamwini & Barry Friedman, How the Federal Government Can Rein in A.I. in Law Enforcement, N.Y. Times (Jan. 2, 2024), https://www.nytimes.com/2024/01/02/opinion/‌ai-police-regulation.html [https://perma.cc/4U5V-UVSJ] (acknowledging OMB’s requirements and urging closing of loopholes). ↑
  19.  Thanks to Noah Chauvin for enhancing our list of examples. ↑
  20.  In April of 2024, the House of Representatives passed the Fourth Amendment Is Not For Sale Act (“FAINFSA”) by a vote of 219-199. See H.R. 4639—Fourth Amendment Is Not For Sale Act, Congress.gov, https://www.congress.gov/bill/118th-congress/house-bill/4639/all-ac‌tions [https://perma.cc/Z8XL-6JC7] (last visited Sept. 7, 2024). This bill would flatly prohibit some of the practices we describe. Joseph Cox, Bill That Would Stop the Government Buying Data Without a Warrant Passes Key Hurdle, Vice (July 19, 2023, 11:19 AM), https://www.vic‌e.com/en/article/wxjgd4/fourth-amendment-is-not-for-sale-act-passes-committee [https://per‌ma.cc/GVB6-6KK7]. The Protect Liberty and End Warrantless Surveillance Act, which incorporates FAINSFA in full, passed through the House Judiciary Committee by a vote of 35-2. H.R. 6570, 118th Cong. (2023); see also H.R. 6570—Protect Liberty and End Warrantless Surveillance Act of 2023, Congress.gov, https://www.congress.gov/bill/118th-co‌ngress/house-bill/6570/all-actions-without-amendments [https://perma.cc/3XJS-Y9XC] (last visited May 15, 2024). The bipartisan, bicameral Government Surveillance Reform Act exceeds even FAINFSA in the information it would protect. H.R. 6262, 118th Cong. (2023); S. 3234, 118th Cong. (2023). The House of Representatives, by voice vote, adopted the Davidson-Jacobs Amendment to the National Defense Authorization Act, which would have prohibited the Department of Defense from purchasing U.S. persons’ protected information without a warrant. H.Amdt.256 to H.R. 2670, Congress.gov (July 14, 2023), https://www.cong‌ress.gov/amendment/118th-congress/house-amendment/256/text?s=3&r=5 [https://perma.cc/‌U8KM-X75W]. For an overview of the threat to privacy that data brokers present and an evaluation of certain legislative proposals, see Emile Ayoub & Elizabeth Goitein, Closing the Data Broker Loophole, Brennan Ctr. for Just. (Feb. 13, 2024), https://www.brennancenter.org/‌our-work/research-reports/closing-data-broker-loophole [https://perma.cc/S3H5-5T7U]. ↑
  21.  See Biden Signs Reauthorization of Surveillance Program into Law Despite Privacy Concerns, NPR (Apr. 20, 2024, 9:54 PM), https://www.npr.org/2024/‌04/20/1246‌076114/sen‌ate-passes-reauthorization-surveillance-program-fisa [https://perma.cc/M5XF-LV5R] (“The reauthorization faced a long and bumpy road to final passage Friday after months of clashes between privacy advocates and national security hawks pushed consideration of the legislation to the brink of expiration.”); see also Preston Marquis & Molly E. Reynolds, House Passes Section 702 Reauthorization, Lawfare (Apr. 16, 2024, 12:59 PM), https://www.lawfaremedia‌.org/article/house-passes-section-702-reauthorization [https://perma.cc/78RP-RGB8] (describing the two-year reauthorization as a “key concession” to ensure the bill’s passage). ↑
  22.  On the nature of the reforms, see infra notes 252–56. A commission was established to “consider ongoing reforms.” Reforming Intelligence and Securing America Act, Pub. L. No. 118-49, § 18(c), 138 Stat. 885 (2024) (codified as amended at 50 U.S.C. § 1881a); see also David Aaron, Unpacking the FISA Section 702 Reauthorization Bill, Just Sec. (Apr. 18, 2024), https://www.justsecurity.org/94771/unpacking-the-fisa-section-702-reauthorization-bill/ [https://perma.cc/XE4T-MVM3]. The Chair of the Senate Intelligence Committee, Senator Mark Warner, acknowledged drafting problems with the reauthorization bill and promised to work towards improvements this summer. Noah Chauvin, Too Much Power for Spy Agencies, Brennan Ctr. for Just. (Apr. 23, 2024), https://www.brennancenter.org/our-work/analysis-opi‌nion/too-much-power-spy-agencies [https://perma.cc/J438-M9P9]. One upshot of the fight was that the FISA reform bill will come to the House floor for passage by simple majority, rather than requiring a two-thirds vote as leadership originally had planned. See Marquis & Reynolds, supra note 21. ↑
  23.  Off. of the Dir. of Nat’l Intel., Senior Advisory Grp., Panel on Commercially Available Info., Report to the Director of National Intelligence 2 (Jan. 27, 2022) [hereinafter ODNI Report], https://www.dni.gov/files/ODNI/documents/assessments/ODNI-Declassified-Repor‌t-on-CAI-January2022.pdf [https://perma.cc/69EZ-2NK2]. ↑
  24.  Press Release, Fed. Trade Comm’n, FTC Order Prohibits Data Broker X-Mode Social and Outlogic from Selling Sensitive Location Data (Jan. 9, 2024), https://www.ftc.gov/news-events/news/press-releases/2024/01/ftc-order-prohibits-data-broker-x-mode-social-outlogic-selling-sensitive-location-data [https://perma.cc/2RNF-JBTP]. On May 1, 2024, the FTC released its final order against InMarket in which it prohibited the data aggregator from sharing or selling sensitive location data for advertising and marketing purposes. Press Release, Fed. Trade Comm’n, FTC Finalizes Order with InMarket Prohibiting It from Selling or Sharing Precise Location Data (May 1, 2024), https://www.ftc.gov/news-events/news/pre‌ss-releases/2024/05/ftc-finalizes-order-inmarket-prohibiting-it-selling-or-sharing-precise-loc‌ation-data [https://perma.cc/B6XR-578H]. ↑
  25.  See Letter from Ron Wyden, U.S. Sen., to Avril Haines, Dir. of Nat’l Intel. (Jan. 25, 2024), https://www.wyden.senate.gov/imo/media/doc/signed_wyden_letter_to_dni_re_nsa_p‌urchase_of_domestic_metadata_and_ftc_order_on_data_brokers_with_attachments.pdf [https://perma.cc/EHJ8-69ZH]; Charlie Savage, N.S.A. Buys Americans’ Internet Data Without Warrants, Letter Says, N.Y. Times (Jan. 25, 2024), https://www.nytimes.com/2024/‌01/25/us/politics/nsa-internet-privacy-warrant.html [https://perma.cc/5GVM-RXXR]. ↑
  26.  See, e.g., ACLU v. Clapper, 785 F.3d 787, 823–24 (2d Cir. 2015) (declining to address whether the NSA’s bulk data collection pursuant to Section 215 violated the Fourth Amendment); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 402, 414, 418 (2013) (dismissing for want of Article III standing the claim that § 1881a of the Foreign Intelligence Surveillance Act of 1978 is unconstitutional); Schuchardt v. President of the United States, 802 F. App’x 69, 76–77 (3d Cir. 2020); Obama v. Klayman, 800 F.3d 559, 562 (D.C. Cir. 2015). ↑
  27.  See Barry Friedman, Lawless Surveillance, 97 N.Y.U. L. Rev. 1143, 1204–14 (2022) (providing a constitutional argument of precisely this nature). ↑

  28.  In Carpenter v. United States, the Supreme Court barred warrantless collection of over six days of cell site location information, despite such collection ostensibly being permitted by the Stored Communications Act. 138 S. Ct. 2206, 2216–19 (2018). But the Court went no further. In that decision, the Chief Justice expressed the need to move cautiously, lest the Court “embarrass the future.” Id. at 2220 (quoting Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944)). Actual legislation will provide the Court with an opportunity to evaluate the specific protections it embodies, as well as government arguments about the utility of the data collected. See, e.g., Berger v. New York, 388 U.S. 41, 44 (1967) (evaluating constitutionality of wiretapping in context of New York’s law); see infra notes 332–40 and accompanying text (discussing how decisions like Berger have led to further legislation). ↑

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