Issue 6

Disrupting Election Day: Reconsidering the Purcell Principle as a Federalism Doctrine

The Purcell Principle—the doctrine that courts should refrain from changing election rules during the period of time close to an election—has long been misconstrued. Where the Principle operates, it creates a near-categorical bar to federal judicial relief in the upcoming election cycle; the provisions of federal law that would normally safeguard voting rights, govern redistricting, and supervise how a state can conduct its elections are paralyzed until after election day. Born and raised on the shadow docket, the Principle has been underdeveloped by the Supreme Court. The Court has provided little guidance as to what triggers the Principle or how it will be applied in future cases. And, in recent years, the doctrine has become increasingly powerful in shaping election law. With the 2024 elections quickly approaching, this Note seeks to shed light on Purcell.

The goals of this Note are twofold. First, I suggest that courts and scholars have been thinking about Purcell incorrectly. I argue that Purcell cannot be justified on the grounds of preventing voter confusion—as the case law and scholarship have suggested—but instead is better explained by federalism. Under this conception, the Court’s historic applications of the doctrine make more sense. Second, I provide a new framework for understanding what triggers Purcell. In deciding whether the Purcell Principle should be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. I provide four conditions for courts to consider in determining whether injunctive relief is disruptive. But these conditions can also provide insight to future litigants making decisions about where, when, and how to bring their election claims to avoid running into Purcell’s snare.

Introduction

On January 24, 2022, two decisions1 1.Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam),aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487.Show More of the U.S. District Court for the Northern District of Alabama held that the districting plan adopted by the State of Alabama for its 2022 congressional elections was “substantially likely” to violate Section 2 of the Voting Rights Act (“VRA”).2 2.Singleton, 582 F. Supp. 3d at 936.Show More The court preliminarily enjoined Alabama from using that map in the forthcoming election and required the state legislature to enact a new plan with a second Black-majority congressional district.3 3.Id.Show More

Two weeks later, and some nine months before the general election, however, the U.S. Supreme Court stayed the district court’s decision, authorizing Alabama to nevertheless move forward with its tarnished map in November.4 4.Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.).Show More The only rationale provided for this stay came not from the Court—which issued an unexplained, unsigned order on its shadow docket5 5.Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”).Show More—but a concurrence from Justice Kavanaugh.6 6.Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More His basis for lifting the injunction rested on the Purcell Principle, a “bedrock tenet of election law” instructing that “federal district courts ordinarily should not enjoin state election laws in the period close to an election” and “federal appellate courts should stay injunctions when . . . lower federal courts contravene that principle.”7 7.Id. at 879–80.Show More

The effect of the Court’s order was to allow the map to apply to the 2022 elections, but with future elections governed by its decision on the merits.8 8.Id. at 882.Show More The map, enacted by a Republican-controlled legislature and signed by a Republican governor,9 9.Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR].Show More produced a safe Republican seat as opposed to one that likely would have elected a Democrat.10 10.Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG].Show More So on election day—as expected without the additional Black-majority district—six Republicans and one Democrat were elected to the U.S. House of Representatives from Alabama.11 11.State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD].Show More

But months after the election had been held, the Supreme Court reversed course. A majority affirmed the district court’s decisions and agreed that Alabama’s plan was indeed unlawful.12 12.See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023).Show More As a result, the invocation of Purcell provided the State with a one-time get-out-of-jail-free card; the Court allowed Alabama to use its map in the 2022 midterms before an adverse decision later on the merits. Scholars have criticized the Court’s use of the Purcell Principle—both on theoretical grounds and its application in this case specifically.13 13.See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021).Show More Indeed, some have even argued that the Republican Party owes its control of the House of Representatives in the 118th Congress to the Supreme Court’s intervention in redistricting actions like this one leading up to the 2022 elections.14 14.Murray & Vladeck, supra note 10.Show More

That the Purcell Principle is controversial is perhaps unsurprising. When the Principle operates, it creates a “presumptive categorical bar”15 15.Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.).Show More to federal judicial relief in the upcoming election cycle. The provisions of both federal constitutional and statutory law that would normally protect voting rights, govern redistricting, and otherwise supervise how a state can conduct its elections are essentially put on hold until after the election at hand. Given the severity and categorical nature of its effect, great weight is thus placed on what triggers application of the Purcell Principle.

I argue that what should trigger Purcell is disruption to a state’s administration of its elections. This conception is different from that of other scholars and jurists, who claim that the Principle is guided by concerns of voter confusion. But disruption alone does not tell the full story either. Understanding Purcell also requires bringing to light the constitutional theory that is underlying the doctrine: federalism16 16.Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019).Show More (as applied here, the idea that decisions about election procedures are primarily the province of the states).

Even though Purcell is supposedly about confusion—indeed, everyone says as much—this Note will demonstrate that rationale does not adequately explain the case law. In practice, the Supreme Court’s applications of the Principle are better rationalized by federalism and disruption; both are necessary to trigger Purcell. Viewing Purcell as a part of the Court’s commitment to federalism is important not only to explain when and why the Principle should be invoked, but it also harmonizes this doctrine with the Roberts Court’s jurisprudence in other areas of election law and beyond. Further, because application of the Principle will effectively neuter election law in the federal courts for a given election cycle, my proposed disruption framework is useful to future litigants making strategic decisions about where, when, and how to bring their claims.

On their face, the Supreme Court’s applications of Purcell may seem partisan. Professor Steve Vladeck, for example, has characterized the Purcell Principle as “[h]ow the [c]urrent Court [u]ses the Shadow Docket to [h]elp Republicans.”17 17.Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8].Show More And Professor Wilfred Codrington has described it as “an empty vessel for unprincipled decisionmaking and inconsistent rulings.”18 18.Codrington, supra note 13, at 941.Show More But this Note suggests there may be an unarticulated rationale that better accounts for the Court’s decisions in this area. In doing so, I do not purport that this is the “true” motivation guiding Purcell or what individual Justices are necessarily thinking. Rather, this Note offers federalism as an alternate, novel ground in a framework that seeks to make the Court’s applications of the Principle more coherent. If you reconsider Purcell as a federalism principle with me and read these cases through the lens of disruption, you just might be disabused of your cynicism.

This Note proceeds in three Parts. Part I introduces the origins of the Purcell Principle and its professed rationales: preventing voter confusion, providing clear guidance to the states, and deferring to the district court. It then surveys the development of the doctrine by reviewing each case in which the Supreme Court has applied the Purcell Principle or otherwise discussed it. Part II then analyzes whether the three rationales announced in Purcell are supported by the subsequent case law. (This Note contends they aren’t.) Having chipped away at those rationales, Part III argues that the Principle is better understood as being justified by the Court’s concerns with federalism. Federalism requires insulating to some degree the ability of the state to dictate the rules that govern its elections. If Purcell is defined by the power of federal courts vis-à-vis the states, the Court’s historic applications of the Principle and the Principle’s limits make more sense. Reconceptualizing the doctrine in this way, I propose a new framework to explain what should trigger Purcell. In deciding whether the Principle ought to be applied, courts would reach more consistent, analytically sound results by asking whether judicial intervention would disrupt a state’s administration of its elections. If an order changing the election rules or procedures would be disruptive, the Principle is invoked and operates as a near-total bar on judicial relief. But where intervention wouldn’t be disruptive, Purcell does not govern and a federal court’s decision to enjoin that state procedure is permissible. I conclude by proposing four conditions necessary for finding disruption, which courts can look to in determining whether the Principle should be applied in a given case.

  1.  Singleton v. Merrill, 582 F. Supp. 3d 924, 936 (N.D. Ala. 2022) (per curiam), aff’d sub nom. Allen v. Milligan, 143 S. Ct. 1487 (2023); Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *3 (N.D. Ala. Jan. 24, 2022), aff’d sub nom. Allen, 143 S. Ct. 1487. ↑
  2.  Singleton, 582 F. Supp. 3d at 936. ↑
  3.  Id. ↑
  4.  Merrill v. Milligan, 142 S. Ct. 879, 879 (2022) (mem.). ↑
  5.  Id. Professor William Baude coined the term “shadow docket” to describe “everything other than the Court’s ‘merits docket.’” Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic, at xii (2023); see also William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1 (2015) (pointing to “a range of orders and summary decisions that defy its normal procedural regularity”). ↑
  6.  Merrill, 142 S. Ct. at 879–82 (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  7.  Id. at 879–80. ↑
  8.  Id. at 882. ↑
  9.  Caster v. Merrill, No. 21-cv-01536, 2022 WL 264819, at *14–15 (N.D. Ala. Jan. 24, 2022); Brian Lyman, Gov. Kay Ivey Signs Off on Alabama Congressional, Legislative, SBOE Maps for 2022, Montgomery Advertiser (Nov. 4, 2021, 3:30 PM), https://www.montgomery‌advertiser.com/story/news/2021/11/03/alabama-congressional-state-house-maps-2022-heade‌d-gov-kay-ivey/6258353001/ [https://perma.cc/RBY9-WLDR]. ↑
  10.  Melissa Murray & Steve Vladeck, The Supreme Court’s Voting Rights Act Ruling Is No Victory for Democracy, Wash. Post (June 8, 2023, 9:28 PM), https://www.washingtonpost.‌com/opinions/2023/06/08/supreme-court-alabama-redistricting-voting-rights-act/ [https://per‌ma.cc/EB4X-9HYG]. ↑
  11.  State of Ala., Canvass of Results: General Election, November 8, 2022, at 15–28 (2022), https://www.sos.alabama.gov/sites/default/files/election-data/2022-11/Final%20Canvass%2‌0of%20Results%20%28canvassed%20by%20state%20canvassing%20board%2011-28-2022‌%29.pdf [https://perma.cc/5GRV-D9GD]. ↑
  12.  See Allen v. Milligan, 143 S. Ct. 1487, 1498 (2023). ↑
  13.  See Vladeck, supra note 5, at 226–27 (arguing that the Court has applied Purcell “inconsistently, and in a way that outwardly favors Republicans far more often than it does Democrats”). See generally Steve Vladeck, 31. Emergency Applications and the Merits, One First (June 12, 2023), https://stevevladeck.substack.com/p/31-emergency-applications-and-the [https://perma.cc/XT2Q-LLAT]; Ruoyun Gao, Note, Why the Purcell Principle Should Be Abolished, 71 Duke L.J. 1139 (2022); Harry B. Dodsworth, The Positive and Negative Purcell Principle, 2022 Utah L. Rev. 1081; Richard L. Hasen, Reining in the Purcell Principle, 43 Fla. St. U. L. Rev. 427 (2016); Michael T. Morley, Election Emergencies: Voting in Times of Pandemic, 80 Wash. & Lee L. Rev.

    359, 425–28 (2023); Wilfred U. Codrington III, Purcell in Pandemic, 96 N.Y.U. L. Rev. 941 (2021). ↑

  14.  Murray & Vladeck, supra note 10. ↑
  15.  Morley, supra note 13, at 427; see also Hasen, supra note 13, at 443 (referring to Purcell as “a per se rule to not allow last-minute judicial changes to election rules”). Justice Kavanaugh has also recognized that the “Court’s opinions, including Purcell itself, could be read to imply that the principle is absolute and that a district court may never enjoin a State’s election laws in the period close to an election.” Merrill v. Milligan, 142 S. Ct. 879, 881 (2022) (Kavanaugh, J., concurring in grant of applications for stays, joined by Alito, J.). ↑
  16.  Federalism can broadly be defined as “[t]he legal relationship and distribution of power between the national and regional governments within a federal system of government, and in the United States particularly, between the federal government and the state governments.” Federalism, Black’s Law Dictionary (11th ed. 2019). ↑
  17.  Vladeck, supra note 5, at vii. In May 2024, however, the Supreme Court applied Purcell to hand what appeared to be a victory to Democrats—staying a district court injunction that paved the way for Louisiana to use a redistricting map with an additional majority-Black district in November. See Robinson v. Callais, 144 S. Ct. 1171, 1171 (2024) (mem.); Nina Totenberg, Supreme Court Upholds Louisiana Redistricting Plan, NPR (May 15, 2024, 6:44 PM), https://www.npr.org/2024/05/15/1250937356/supreme-court-louisiana-redistricti‌ng [https://perma.cc/E8Y9-RDL8]. ↑

  18.  Codrington, supra note 13, at 941. ↑

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

­­­­

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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