Preamble
The Constitution of the United States establishes a government of limited and enumerated powers and secures to the people certain rights that exist independently of government.
The Fourth Amendment protects the people against unreasonable searches and seizures. Since its adoption, however, technological and governmental developments have created means of surveillance and information collection that could not have been contemplated by the Framers.
A government that can continuously monitor a person’s movements, communications, medical information, associations, purchases, and other private activities possesses a degree of knowledge and power fundamentally different from that available to government at the founding of the Republic.
The purpose of this Amendment is therefore to establish a clear constitutional boundary between legitimate governmental investigation and generalized surveillance of the people.
Accordingly, the following Article is proposed as an amendment to the Constitution of the United States.
ARTICLE XXVIII
The Privacy Amendment
Section 1. Right to Privacy
The right of the people to be secure in their persons, homes, papers, communications, effects, records, associations, movements, and personal information against unreasonable governmental search, surveillance, collection, retention, analysis, disclosure, or seizure shall not be violated.
This right shall not depend upon whether information is physically possessed by the individual, entrusted to another person, or held by a private entity on the individual’s behalf.
No person shall be deemed to have surrendered a reasonable expectation of privacy merely because information has been transmitted electronically, entrusted to a third party, exposed to public view for a limited purpose, or lawfully possessed by another person.
Section 2. Particularized Judicial Authorization
The government shall not search, seize, monitor, collect, obtain, retain, or analyze private information concerning a person unless:
- A warrant or other judicial order has been issued by a court of competent jurisdiction;
- The application particularly identifies the person, place, account, device, record, communication, or category of property to be searched or obtained;
- The government establishes probable cause that the information sought constitutes evidence of a specific violation of law or is necessary to prevent an imminent and particularized threat of serious bodily harm;
- The scope and duration of the search or surveillance are limited to what is reasonably necessary to accomplish its lawful purpose; and
- The person whose privacy is affected is afforded notice and a meaningful opportunity for judicial review, except when temporary delay is specifically authorized by the issuing court upon a particularized showing of investigative necessity.
General warrants, indiscriminate searches, and generalized surveillance shall be prohibited.
Section 3. Information Held by Third Parties
A person retains a reasonable expectation of privacy in personal information entrusted to a physician, attorney, accountant, financial institution, telecommunications provider, Internet service provider, cloud-storage provider, electronic-mail provider, or other custodian when the information concerns the person’s private affairs.
Government acquisition of such information shall be treated as a search of the person to whom the information relates, regardless of whether the information is physically possessed by a third party.
The government shall not circumvent the warrant requirement by obtaining private information indirectly from a third party when the government could not constitutionally obtain the same information directly from the individual.
Section 4. Medical Privacy
The confidential relationship between a patient and a health-care professional shall be protected against unreasonable governmental intrusion.
Medical records, diagnoses, medications, communications between patient and physician, mental-health records, genetic information, and other individually identifiable health information shall not be obtained, searched, retained, or disclosed by the government without a particularized judicial warrant based upon probable cause, except when disclosure is necessary to address an immediate and particularized threat to human life.
Nothing in this section shall prohibit narrowly tailored laws requiring health-care professionals to report abuse, certain communicable diseases, specified injuries, or other circumstances in which the government demonstrates a compelling and particularized necessity.
The existence of a medical condition, diagnosis, prescription, or communication with a physician shall not, by itself, constitute probable cause of criminal conduct or grounds for governmental surveillance.
Section 5. Electronic Communications and Metadata
The content and metadata of electronic communications shall receive constitutional protection.
Government acquisition of e-mail addresses, Internet Protocol addresses, contact lists, communication logs, location information, subscriber information, routing information, transactional records, or similar data capable of revealing the associations, movements, activities, or relationships of an identifiable person shall constitute a search when such information is sufficiently detailed to reveal the private affairs of that person.
The government shall not obtain such information in bulk merely because a telecommunications or Internet service provider possesses it.
The government shall not compel a provider to disclose information concerning persons who are not individually identified in a particularized judicial order.
Section 6. Surveillance of Public Spaces
The government shall not use cameras, facial-recognition systems, drones, automated sensors, or other technologies to create persistent records of the movements, identities, associations, or activities of persons in public places unless authorized by a particularized judicial order or pursuant to a narrowly defined exception established by law.
The incidental observation of a person in a public place shall not, by itself, create a governmental right to permanently record, identify, aggregate, analyze, or retain that person’s movements.
The government shall not combine multiple surveillance systems for the purpose of constructing a comprehensive record of an individual’s movements or associations without a particularized warrant.
Section 7. Automated License-Plate Readers
The government shall not collect, retain, aggregate, transfer, or analyze automated license-plate-reader data concerning persons who are not the subjects of a particularized criminal investigation supported by probable cause.
License-plate information obtained incidentally shall be deleted within a reasonable period established by law unless a court determines that continued retention is necessary for a specific investigation.
No governmental entity shall create or maintain a comprehensive historical database of the movements of lawfully operating motor vehicles absent a particularized judicial order.
Nothing in this section shall prohibit the immediate use of license-plate information to identify stolen vehicles, vehicles associated with an active criminal investigation, or vehicles presenting an objectively identifiable and immediate threat to public safety.
Section 8. Firearm Records and Registration
No governmental entity shall establish or maintain a registry identifying lawfully possessed firearms or the owners thereof.
Government acquisition, aggregation, or retention of information identifying persons who lawfully acquire, possess, carry, transfer, or use firearms shall not constitute a prerequisite to exercising a constitutional right.
Nothing in this section shall prohibit the temporary acquisition or retention of firearm information that is directly relevant to a particular criminal investigation supported by probable cause.
Investigative records concerning firearms recovered in connection with bona fide criminal investigations shall not be converted into a general registry of lawful firearm ownership.
Section 9. Firearm-Seizure Orders and Due Process
No governmental entity shall seize firearms or prohibit a person from possessing firearms solely upon an unsubstantiated allegation, anonymous accusation, generalized risk assessment, or information that would not otherwise establish probable cause of a violation of law.
Any judicial order temporarily restricting a person’s possession of firearms shall:
- Be issued by a neutral judicial officer;
- Be supported by sworn, particularized evidence;
- State the factual basis for the order;
- Be limited in duration;
- Provide the affected person prompt notice, except when a narrowly limited temporary delay is necessary to prevent an imminent and particularized threat of serious bodily harm;
- Provide the affected person a prompt and meaningful hearing before a neutral judicial officer; and
- Require the government to establish the factual basis for continuing the restriction.
Nothing in this section shall prohibit temporary emergency action when a court determines, based upon particularized evidence, that an identifiable person presents an imminent and substantial threat of serious physical harm.
The burden of establishing the factual basis for continued deprivation shall remain upon the government.
Section 10. Data Minimization and Destruction
Information lawfully obtained by the government pursuant to this Amendment shall:
- Be limited to the information specifically authorized by the court;
- Be used only for the governmental purpose stated in the judicial order;
- Be protected against unauthorized access and dissemination; and
- Be destroyed when it is no longer reasonably necessary for the authorized governmental purpose.
The government shall not retain information merely because future usefulness is conceivable.
Information concerning persons determined not to be subjects of an investigation shall be segregated and destroyed within a reasonable period established by law, absent a specific judicial finding that continued retention is necessary.
Section 11. Prohibition Against Circumvention
The protections of this Amendment shall apply regardless of the technological, contractual, or organizational means by which information is obtained.
The government shall not evade this Amendment by:
- Purchasing information from private data brokers;
- Obtaining information through another governmental agency;
- Acquiring information from a state or local government;
- Obtaining information from a private company instead of directly from the individual;
- Combining multiple databases;
- Using facial recognition or other automated identification technologies;
- Using administrative subpoenas or similar processes when a warrant would otherwise be required; or
- Contracting with a private entity to perform an act that the government itself would be prohibited from performing.
Section 12. Remedies
Any person whose rights under this Amendment are violated shall have standing to seek appropriate judicial relief.
Evidence obtained in violation of this Amendment shall be inadmissible in criminal proceedings, except when the government establishes that the evidence was obtained independently of the unconstitutional search.
A person whose information was unlawfully collected, retained, disclosed, or disseminated shall have a private right of action against the responsible governmental entity and, where permitted by law, against individual officials who knowingly or recklessly violated this Amendment.
Congress shall provide appropriate remedies, including injunctive relief, damages, and reasonable attorney’s fees.
Section 13. Construction
Nothing in this Amendment shall be construed to:
- Restrict legitimate law-enforcement investigations supported by probable cause;
- Prevent emergency action necessary to prevent imminent death or serious bodily injury;
- Prevent consensual disclosure of information by a person;
- Prevent the government from obtaining information voluntarily and knowingly made public by the person concerned, except when the government subsequently aggregates or analyzes that information in a manner constituting persistent surveillance;
- Diminish any protection presently afforded by the Constitution; or
- Grant the government any power not otherwise delegated to it by the Constitution.
The enumeration of privacy rights in this Amendment shall not be construed to deny or disparage other rights retained by the people.
RATIONALE AND HISTORICAL BASIS
The Need for a Constitutional Privacy Amendment
The Fourth Amendment was adopted in an era when governmental surveillance generally required physical intrusion. A government agent who wished to follow a person’s movements had to physically follow the person. A government agent who wished to read correspondence generally had to obtain the physical document. A government agent who wished to observe a person’s activities had to do so personally or through informants.
Modern technology has radically altered that equation.
A government agency can now acquire enormous quantities of information concerning innocent people, retain the information indefinitely, combine it with other databases, subject it to automated analysis, and reconstruct aspects of a person’s private life without physically entering his home or opening his papers.
The issue is therefore no longer simply whether government may conduct a particular search.
The issue is whether government may construct a permanent and comprehensive record of the lives of people who have committed no crime.
This Amendment establishes that it may not.
DOCUMENTED EXAMPLES OF GOVERNMENTAL PRIVACY INTRUSION
1. Medical Information and the Physician-Patient Relationship
Federal law recognizes substantial privacy protections for medical information, but those protections are not absolute.
The Department of Health and Human Services states that HIPAA permits covered entities to disclose protected health information to law-enforcement officials under specified circumstances. These include court orders and warrants, certain subpoenas, grand-jury subpoenas, and specified administrative requests. HIPAA also permits limited disclosures in other circumstances established by regulation.[1]
HHS further explains that HIPAA does not necessarily require a warrant for every disclosure and that certain information may be disclosed pursuant to specified administrative processes.[2]
The issue addressed by this Amendment is therefore not an assertion that every government acquisition of medical information is presently unlawful. Rather, it is the constitutional principle that information disclosed to a physician for purposes of medical treatment should not thereby become generally available to the government.
A patient should not have to choose between receiving medical treatment and creating a governmental record capable of later being used for unrelated governmental purposes.
The proposed Amendment establishes a higher constitutional standard: governmental access to individually identifiable medical information would ordinarily require a particularized warrant based upon probable cause.
2. Government Cameras, Facial Recognition, and Public-Space Surveillance
Governmental observation of public places has existed for centuries. Modern technology, however, allows observation to become permanent, searchable, automated, and extraordinarily comprehensive.
The Government Accountability Office reported that 18 of 24 federal agencies surveyed used facial-recognition technology during fiscal year 2020. GAO also found that federal law-enforcement agencies were using facial recognition in criminal investigations and that some agencies did not adequately track employee use of non-federal facial-recognition systems.[3]
More recently, GAO examined Department of Homeland Security law-enforcement use of more than 20 detection, observation, and monitoring technologies, including facial recognition, drones, pole-mounted cameras, and license-plate readers. GAO specifically noted that the use of such technologies in public spaces without a warrant can raise civil-liberties and privacy concerns.[4]
The constitutional problem is not that a police officer can see a person standing on a sidewalk.
The problem arises when government possesses the technological ability to identify that person, record his presence, determine where he subsequently travels, identify other people with whom he associates, and retain that information indefinitely.
A constitutional right against unreasonable surveillance must therefore address aggregation, persistence, and automated analysis rather than merely physical intrusion.
3. Automated License-Plate Readers
Automated license-plate readers illustrate the difference between observation and surveillance.
An officer observing a vehicle on a public road acquires a single piece of information. A network of automated readers can acquire millions of observations and create a historical record of vehicle movements.
GAO has documented government use of license-plate readers and other technologies that collect information in public spaces. GAO has also identified privacy concerns arising from the collection and use of data generated by such technologies.[4][5]
The proposed Amendment does not prohibit law enforcement from determining that a particular vehicle is stolen or is associated with a specific criminal investigation.
It prohibits the conversion of ordinary lawful travel into a permanent governmental database of the movements of innocent people.
4. Telephone and Internet Metadata
The post-September 11 expansion of government surveillance powers provides one of the clearest historical examples demonstrating the need for a constitutional limit.
The USA PATRIOT Act expanded the government’s authority to obtain certain records from third parties. The Department of Justice Inspector General subsequently found serious and widespread misuse of National Security Letter authorities, including unauthorized collection of telephone and Internet e-mail transactional records.[6]
The Inspector General’s review of 293 National Security Letters in 77 investigative files identified 22 previously unreported possible violations. The identified problems included improper authorization, improper requests, and unauthorized collection of records.[6]
The Inspector General later reported that, among 640 possible National Security Letter-related intelligence violations examined in one review, 576 involved unauthorized collections of telephone or e-mail transactional records, financial records, or credit records.[7]
The problem was not merely theoretical. Government investigators were sometimes receiving information that exceeded what the government had legally requested.
Section 215 of the USA PATRIOT Act produced an even broader form of surveillance. Under the telephone-metadata program, the FBI obtained court orders directing telecommunications providers to produce telephone metadata in bulk. The information was stored, queried, and analyzed by the National Security Agency.[8]
The proposed Amendment would establish a constitutional rule that bulk acquisition of communications metadata concerning unidentified Americans is incompatible with the right to privacy.
The fact that metadata does not contain the words spoken or written during a communication does not make the information innocuous. A sufficiently comprehensive record of communications can reveal an individual’s relationships, associations, movements, and activities.
5. Firearm Records and Government Databases
The government has a legitimate investigative interest in tracing firearms recovered in criminal investigations.
The Bureau of Alcohol, Tobacco, Firearms and Explosives states that its National Tracing Center and eTrace system are used to trace firearms involved in bona fide criminal investigations. ATF expressly states that eTrace is not a firearm registry or repository of sales information.[9]
That distinction should be preserved.
The proposed Amendment therefore does not prohibit firearm tracing conducted as part of a legitimate criminal investigation. Instead, it establishes a constitutional prohibition against transforming information about lawful firearm acquisition or possession into a generalized registry of Americans exercising a constitutional right.
The constitutional concern is the creation and aggregation of identifying information about otherwise law-abiding citizens, rather than the use of particular firearm information as evidence in an actual criminal investigation.
6. Red-Flag Orders and Government Access to Personal Information
Extreme-risk protection orders, commonly called red-flag laws, create a related privacy and due-process concern.
Such laws differ among jurisdictions. Some permit temporary firearm restrictions based upon allegations concerning an individual’s behavior, mental state, or perceived risk before the affected person receives a full evidentiary hearing.
The Congressional Research Service has identified due-process issues associated with such laws, noting that the Fifth and Fourteenth Amendments protect persons from deprivation of constitutionally protected liberty or property without due process of law. CRS has specifically identified the right to keep and bear arms as a potentially affected constitutional interest.[10]
The proposed Amendment does not prohibit every emergency intervention.
Instead, it requires:
- particularized evidence;
- a neutral judicial officer;
- a defined duration;
- prompt notice;
- a meaningful hearing; and
- a continuing burden upon the government to justify continued deprivation.
These requirements are intended to prevent an allegation from becoming a permanent governmental determination of dangerousness without meaningful opportunity for the affected person to contest the allegation.
PRINCIPLES UNDERLYING THE AMENDMENT
The proposed Amendment rests upon several principles of constitutional government.
1. Individual liberty
The individual possesses rights that do not originate with government.
2. Limited government
Governmental power should be specifically justified rather than presumed.
3. Due process
Government should not deprive a person of liberty or property without notice, evidence, and an opportunity to be heard.
4. Particularized government action
The government should investigate people suspected of violating the law rather than treating the entire population as subjects of investigation.
5. Technological neutrality
Constitutional rights should not disappear merely because information can be collected electronically rather than physically.
6. Data minimization
Government should collect only information reasonably necessary for a legitimate governmental purpose and should not retain information indefinitely merely because it might someday prove useful.
7. Protection against circumvention
Government should not be permitted to accomplish indirectly what the Constitution prohibits it from accomplishing directly.
THE FUNDAMENTAL RULE
The Amendment can ultimately be reduced to a straightforward principle:
The government must have a particularized, lawful, and constitutionally sufficient reason before it may turn information about an individual into governmental intelligence.
A free society does not require the government to remain ignorant of crime.
It does require government to distinguish between investigating a person because there is evidence of wrongdoing and collecting information about everyone in case someone eventually does something wrong.
The former is law enforcement.
The latter is generalized surveillance.
The purpose of this Amendment is to ensure that the Constitution continues to recognize the difference.
ENDNOTES
1. U.S. Department of Health and Human Services, Office for Civil Rights, “When does the Privacy Rule allow covered entities to disclose protected health information to law enforcement officials?” HHS explains the circumstances under which protected health information may be disclosed to law enforcement, including court orders, warrants, subpoenas, grand-jury subpoenas, and specified administrative requests. (HHS.gov)
2. U.S. Department of Health and Human Services, Office for Civil Rights, “Summary of the HIPAA Privacy Rule.” HHS identifies several circumstances in which protected health information may be disclosed for law-enforcement purposes and explains that HIPAA establishes a federal floor of privacy protections. (HHS.gov)
3. U.S. Government Accountability Office, Facial Recognition Technology: Federal Agencies’ Use and Related Privacy Protections, GAO-22-106100, June 29, 2022. GAO reported that 18 of 24 surveyed federal agencies used facial-recognition technology in fiscal year 2020 and identified privacy and oversight concerns. (GAO)
4. U.S. Government Accountability Office, Law Enforcement: DHS Could Better Address Bias Risk and Enhance Privacy Protections for Technologies Used in Public, GAO-25-107302, December 3, 2024. GAO examined DHS use of facial recognition, license-plate readers, drones, pole-mounted cameras, and other technologies in public spaces and identified privacy-protection deficiencies. (GAO)
5. U.S. Government Accountability Office, Personal Information: Agency and Reseller Adherence to Key Privacy Principles, GAO-06-421. GAO documented government use of license-plate-reader information and the integration of such information with government and commercial databases. (GAO)
6. U.S. Department of Justice, Office of the Inspector General, A Review of the Federal Bureau of Investigation’s Use of National Security Letters, and related testimony. The OIG found serious and widespread misuse of National Security Letter authorities, including unauthorized collection of telephone and Internet e-mail transactional records. Its review of 293 NSLs in 77 investigative files identified 22 possible violations that had not previously been identified or reported. (DOJ Office of Inspector General)
7. U.S. Department of Justice, Office of the Inspector General, A Review of the FBI’s Use of National Security Letters. The OIG reported 640 possible NSL-related intelligence violations in the reviewed period, of which 576 involved unauthorized collections of telephone or e-mail transactional records, financial records, or credit records. (DOJ Office of Inspector General)
8. U.S. Department of Justice, Office of Information Policy, Bulk Collection of Telephony Metadata Under Section 215 of the USA PATRIOT Act. The Department describes the Section 215 program under which the FBI obtained court orders directing telecommunications providers to produce telephony metadata in bulk and the NSA stored, queried, and analyzed that information. (Department of Justice)
9. U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, “Fact Sheet — eTrace: Internet-Based Firearms Tracing and Analysis,” updated June 10, 2026. ATF states that eTrace is used for firearms tracing in bona fide criminal investigations and expressly states that eTrace is not a firearm registry or repository of sales information. (ATF)
10. Congressional Research Service, Extreme Risk Protection Orders and the Second Amendment, IF11205. CRS discusses the due-process implications of extreme-risk protection orders and identifies both the right to keep and bear arms and property interests as potentially affected constitutional interests. (congress.gov)