The Blueprint for a Civil Rights Lawsuit against Government Surveillance Contractors

John Blegen

 

Introduction

In March of 2026, FBI Director Kash Patel, while speaking before the House Permanent Select Committee on Intelligence made a brazen admission. When asked by Ron Wyden, a Democratic senator from Oregon, whether the FBI purchases Cell Phone Location Data from internet advertisers, Patel replied:

“We do purchase commercially available information that’s consistent with the constitution and the laws under the Electronic Communications Privacy Act, and it has led to some valuable intelligence for us.”

Ron Wyden replied that if true, this practice by the FBI would constitute “an outrageous end run around the Fourth Amendment [that is] particularly dangerous given the use of artificial intelligence to comb through massive amounts of private information.”[1]

This FBI practice is not just an “outrageous end run around the Fourth Amendment,” but an outright violation of Americans’ Fourth Amendment right to privacy against unwarranted government surveillance.

In Carpenter, the Supreme Court held that it is illegal for the government to access cell phone location data information without a warrant.[2] Carpenter mentions no exception to this rule for information that has been purchased from wireless carriers or data brokers. It is not the property rights wireless carriers possess over this information that the Fourth Amendment protects; it is the right to privacy against unchecked government surveillance as ensured by the Constitution.

Patel’s argument would be the same as saying, the government is free to pay a private thug to break into a suspect’s apartment and acquire his wardrobe, or his private collection of firearms, or his diary, or any other piece of evidence without a warrant, so long as they do not do so themselves. It is a brazen admission of the FBI’s intent to not follow the Constitution.[3]

What allows Patel to be brazen enough to make such a statement is the fact that there currently exists no legal mechanism by which the public can validate their right to privacy against government surveillance. This is the case due to decades of congressional lethargy on the issue of data and tech surveillance, as well as the Federal Trade Commission’s refusal to enforce what little data protection laws do exist.[4]

It is also the result of years of the Supreme Court hollowing out plaintiffs’ ability to bring lawsuits against the federal government for violations of the Constitution.[5]  Such civil suits may be brought pursuant to 42 U.S.C. § 1983, which allows suits against states for actions taken in violation of individuals’ Federal Rights, and Bivens actions, which are the equivalent of a 1983 lawsuit against the federal government.

This paper contends that 1983 actions could provide a fruitful method for individuals to validate their right to privacy and push privacy forward against government surveillance, as well as third-party surveillance conducted by AI-surveillance companies like Palantir, which synthesizes mass amounts of data from across various sources into one “fusion” profile and Clearview AI, which provides facial recognition software to law enforcement agencies, both at the state and federal level.

As I will explain below, Section 1983 is an effective tool to limit both these private companies and the government because precedent has held that government contractors may also be subject to a Section 1983 lawsuit when they are performing government functions.

This paper also examines Bivens actions, with the caveat that Bivens law has been deeply neutered by Supreme Court precedent, making it effectively impossible to bring a lawsuit against the federal government for violation of federal rights, even though 1983 allows the same to be done against the states – as implausible as that sounds.

The Right to Privacy

Before examining what the strengths and obstacles of a lawsuit validating an individual’s right to privacy under Section 1983 or Bivens will look like, I will first give a brief outline of how the Supreme Court has characterized the right to privacy pertaining to data surveillance, and some functions currently performed by AI-surveillance software companies on behalf of states and the federal government that may be in violation of the right to privacy.

Government surveillance was one of the chief nuisances that the Bill of Rights was meant to prevent.[6] The Supreme Court has consistently interpreted the constitution to provide broad protections that secure “‘the privacies of life’ against ‘arbitrary power,’”[7] and that “‘place obstacles in the way of a too permeating police surveillance.’”[8]

This protection against unlawful government surveillance extends further than searches and seizures of material things and persons.[9] The Constitution also prohibits unlawful surveillance itself, and the excessive accumulation of information about individuals, for the effect it has on a person’s peace of mind, for the antagonistic relation it puts the public in against the government, and for the chilling effect surveillance has on speech.[10] In short,  the constitution ensures the right to be left alone – “the most comprehensive of rights and the right most valued by civilized men.”[11]

Sixty years ago, the Supreme Court held that the constitution ensures individuals a right to privacy against government interference.[12] The Katz “reasonable expectations test,” provides that the government violates the right to privacy when it oversteps upon someone’s “justifiable,” “reasonable,” or “legitimate expectation of privacy.”[13]

This rule has produced a bulk of contradictory case law. As Orin S. Kerr writes:

“If the police search a home, they need a search warrant. If the police search a car[,] no warrant is needed. If the police tap the contents of a phone call, they need a warrant; but if they record the numbers dialed from the phone, the Fourth Amendment doesn’t apply . . .. The police need a warrant to point a thermal imaging device at a home to learn if the walls are hot, but the Fourth Amendment permits the police to fly an airplane over the home and photograph it without restriction . . .. The police need a warrant to place a microphone on a public phone booth, but the Fourth Amendment doesn’t apply if they send an undercover agent wearing a microphone into the target’s home.”[14]

Despite uncertain case law as to what amounts to a violation of privacy, on several occasions in the last two decades the Court has consistently applied the reasonable expectations test and found that prolonged surveillance and data accumulation by government agents violates the Fourth Amendment right to privacy.

In Jones,  Federal Agents acting without a warrant attached a GPS tracking device to the undercarriage of Jones’s Jeep vehicle and surveilled his movements for 28 days.[15] Scalia, writing for the majority, held that this prolonged surveillance violated Jones’s Fourth Amendment rights, both because of the physical intrusion upon Jones’s Jeep, and because of the government’s prolonged surveillance of Jones’s movements over the 28 days.[16] Both Sotomayor and Alito filed separate concurrences. Alito, joined by Brennan, Ginsburg, and Kagan, disagreed that the physical intrusion on Jones’ Jeep was unnecessary to the reasonable expectations analysis. Sotomayor, on the other hand, questioned whether even the reasonable expectation of privacy test is sufficient to cover the potential constitutional violations that modern surveillance technology poses, such as the risk surveillance poses both to the Fourth and First Amendments.[17]

In Riley, the Supreme Court held that searches of a cell phone are not included within the search incident to arrest exception to the Fourth Amendment.[18] Typically, officers are permitted to search an arrestee’s person and the insides of any container they find on the arrestee’s person.[19] Officers are given significant deference when making these searches, both for the dual purposes of officer safety and to prevent the destruction of evidence. Even when these twin risks are not present, the Court has directed reviewing judges to give deference to the government, so not to second-guess the judgement calls of arresting officers.[20]

Nonetheless, the Riley court held that officers may not search the contents of a cellphone they find on an arrestee’s person, even though the same rationales of safety and destruction of evidence may be particularly heightened in such a case.[21] This is so because the privacy interests in the contents of a cell phone outweigh those twin rationales. As Roberts writes:

“The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions . . .. Third, the data on a phone can date back to the purchase of the phone, or even earlier.”[22]

The court goes on to note how “pervasive[e]” cell phones are in the modern public, and how the software of a modern cell phone contains apps that can “reveal detailed information about all aspects of a person’s life” including their religious preferences, political party affiliation, and internet searches.[23] Remarkably, the court even suggests the unwarranted search of a cell phone could be more invasive than the unwarranted search of a house.[24]

Of note is the Court’s concern that a cell phone synthesizes disparate sources of information about a person into one place, and tracks them for a prolonged period, into the past, even before any criminal involvement deserving of surveillance emerged. As I will explain, this synthesis of information is exactly the privacy invasions that private AI-surveillance companies perpetrate.

Six years after Riley, in Carpenter, the Court again applied the reasonable expectation test in a case of government surveillance.[25] Carpenter involved a federal investigation into a group of persons suspected of robbing a series of Radio Shacks and T-Mobile stores around Detroit. The government, acting under a provision of the Stored Communications Act, compelled Carpenter’s wireless carriers, Sprint and MetroPCS, to disclose his cell phone records spanning a four-month period. The cell phone data showed that Carpenter had been at the location of each of the robberies, allowing prosecutors to convict him as the ringleader of the operation. Carpenter was sentenced to over 100 years in prison.[26]

The Court of Appeals for the Sixth Circuit held that Carpenter had no reasonable expectation to privacy in his cell phone records because that information had been shared with his wireless carriers, invoking a legal defense called “the third-party doctrine,” which limits privacy protections for information that an individual has shared with a private company.[27]

Justice Roberts, writing for the majority, disagreed with the Sixth Circuit, holding instead that the third-party doctrine does not apply to cell phone location data disclosed with a wireless carrier.[28] This is because such location data is uniquely sensitive: “[a]s with GPS information, the time-stamped data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his familial, political, professional, religious, and sexual associations.”[29] Furthermore, cell phone data is consistently tracked whenever an individual has their cell phone on their person. This provides a bulk of data about virtually every individual who carries a cell phone on them throughout the course of the day. Accordingly, the Supreme Court held that individuals have a reasonable expectation of privacy in their cell phone location data and the government must obtain a warrant before they collect it from a wireless carrier.[30]

In many ways, the privacy concerns that the Supreme Court addresses are the same that the Founding Fathers addressed when they wrote the Fourth Amendment to restrict the use of general warrants.[31] In the colonial era, general warrants were used to authorize broad searches of houses in a given area, in one case specifically “to uncover the authors of seditious publications allow [police] to engage in a spree of house searches, arrests, and seizures of private papers.”[32] Similarly, the right to privacy the court has recognized against data surveillance ensures that the government may not collect bulk amounts of data about the general public’s movements, communications, or personal beliefs in search of potential criminality.

AI-powered Police Surveillance Software

The Federal Government and the States have both increasingly turned to Palantir and other AI-powered surveillance software contractors when conducting police investigations, immigration detention, and other agency activities.

The way surveillance software works is by using AI to analyze large swaths of data, from many different sources, and synthesize that data into one profile assessment, often using colorful graphs, and user interfaces that allow officers to navigate a behavioral index.[33] Palantir was originally employed in 2004 by the CIA, in Iraq and Afghanistan,  providing spies and intelligence  software that “comb[ed]” through disparate data sources including financial records, airline reservations, social media posts and cellphone records, and then presented that data in “colorful, easy-to-interpret graphics that look like spiderwebs.”[34]

Since then, that technology has been turned upon the American public.

Both federal and state law enforcement now utilize Palantir’s Foundry and Gotham software services to surveille American citizens. Foundry and Gotham synthesize information from many different datasets into one “Fusion” profile, that can rank an individual based on their risk of committing future crimes. The data sources Palantir pulls from are expansive, including police records, license-plate readers, health care information, bank records, social media posts, social media private messages, purchase history, even an individual’s tattoos.[35]

AI-surveillance software has also seen massive use by immigration enforcement agencies. ICE has extensive contracts with Palantir for surveillance software that gathers data from millions of individuals, immigrants or not, and synthesizes that data to identify potential undocumented immigrants.[36] In 2025, ICE granted a new $30 million contract to Palantir to develop “ImmigrationOS,” a surveillance platform that will “streamline the identification and apprehension of individuals prioritized for removal.”[37]

AI surveillance has also been used by employers to track the activity of their employees.[38] This can include cameras that monitor the faces and the eyes of truck drivers, and software on work-supplied laptops that track the productivity of a user – how quickly they are typing, and what webpages they visit.[39] These “bossware” surveillance systems could become the subject of civil litigation if incorporated by government employers. On point, in 2025 the Department of Agriculture signed a $300 million contract with Palantir, including provisions to supply the Department with employee-monitoring software.[40]

While Palantir’s main contracts are at the federal level, it also has significant contracts with state and local police agencies. For instance, in 2012, the New Orleans Police Department entered a contract with Palantir for access to an investigative software called “Social Network Analysis” that combined data sourced from New Orleans criminal databases, vehicle records, and social media history to predict the likelihood that an individual would commit acts of violence or become a victim.[41]

From 2012-2017 the Northern California Regional Intelligence Center had extensive contracts with Palantir, providing them access to criminal databases for predictive analysis.[42] While California’s contracts with Palantir have presently ended, the licensing agreements with Palantir allow for indefinite use of the software.[43]  Additionally, local municipal departments in California have contracted with Palantir for algorithmic analysis software that determines “who to help first” when administering services.[44]

Other companies aside from Palantir that provide data analysis software to states include SAS Institute,[45] Clearview AI,[46] and Optum.[47]

By accumulating these massive amounts of data from disparate sources, AI-surveillance software tracks individual movement, speech, associations, beliefs and  preferences, and makes these once transitory moments permanent data points in a synthesized profile that may have serious repercussions on an individual’s risk of being profiled by police, denied employment, detained by immigration services, denied a loan, and having their insurances rates raised. AI-surveillance raises the same privacy risks that the Supreme Court has repeatedly emphasized when considering police accumulation of cell phone location data.

The History of Section 1983

Section 1983 was born of the Civil Rights Act of 1871, a remedial statute passed by the Forty-Second Congress during the Reconstruction era.[48] The 1871 Act was meant to combat the rise of the Ku Klux Klan in the south, and to provide a legal remedy against state officials who were complicit in the Klan’s violence against Black Americans.[49] Nonetheless, section 1983, from its inception, was also intended to protect the whole sum of federal rights, not just those pertaining to issues of racial violence in the reconstruction south.[50]

The ambition of Congress in passing the 1871 act was no less than to revolutionize the relationship between private citizens and the government.[51] The act was written to address the inaction of  state officials in prosecuting members of the Ku Klux Klan.[52] Congress was emboldened to enact this act after witnessing the Federal Government repeatedly fail to curb state endorsed racial violence by other means, including the Military Reconstruction Acts of 1867 and 1868.[53]

By “opening the doors”[54] of the federal courts to private citizens who had their rights violated, congress established a new legal organ by which violations could be identified and remedied, without persistent federal oversight.[55] Accordingly, the law was written with open, powerful language meant to be broadly construed:

That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress.[56]

The consistent presence of the word “any,” the open-endedness of the protections ensured to plaintiffs, and the assurance of a broad range of remedies, demonstrate that the Forty-Second Congress meant for this law to empower plaintiffs to sue whenever a federally ensured right had been violated.[57]

In the century and a half since passage of section 1983, the cause of action has been the mechanism for suits in cases involving the violent, unwarranted nighttime invasion of a family’s home by law enforcement officers;[58] physical abuse by prison guards;[59] the unconstitutional termination of a city police chief without a pre-termination hearing;[60] parents’ wrongful inclusion on a child abuse registry despite being exonerated of the charges;[61] a street preacher suing to declare a local ordinance restricting public protests and demonstrations an unlawful infringement on the First Amendment;[62] and individuals suing to say a Chicago ordinance against handguns violated the Second Amendment.[63]

Nonetheless, since the 1980s the Supreme Court has repeatedly limited section 1983, subjecting plaintiffs to inconsistent and labyrinthine qualified immunity restrictions,[64] and a resurgence of state sovereign immunity doctrine.[65]

Still, section 1983 actions remain one of the most expedient and direct legal mechanisms by which citizens can have their federal rights validated, and is particularly useful in the privacy context, in that it allows suit against government contractors who carry out surveillance activities on the government’s behalf; additionally, plaintiffs may ask for punitive damages in a 1983 action.

Bivens and Civil Rights Lawsuits against the Federal Government

Bivens actions are the federal equivalent of section 1983.[66]  In Bivens, the Supreme Court held that even though there has never been legislation passed in congress establishing a cause of action against the federal government equivalent to section 1983, it would be a glaring error in the law to allow that federal officers may violate an individual’s civil rights without the availability of a civil damages remedy.[67] Thus, a Bivens suit became a judicially created cause of action allowing recovery of damages from federal officers that have violated an individual’s federal rights.

Since Bivens, the Court has greatly restricted the scope Bivens, citing sovereign immunity of the federal government (notwithstanding the fact the constitution was written expressly to restrain the sovereign immunity of the federal government) and the fact that Bivens actions are a judicially created remedy, and not a legislatively created one.[68]

Currently, the law is that courts should not extend Bivens actions to new contexts.[69] In recent years, what counts as a new context has been interpreted to shield Border Patrol agents, and ICE agents from suits for flagrant violations of federal rights, in part for the fact that there has never been a Bivens lawsuit against Border Patrol or ICE agents in the past.[70]

Bivens actions have also been expressly denied against private corporations acting as contractors for the US government.[71]

In sum, as the law currently stands, a Bivens action against AI-surveillance companies acting in violation of the public’s Right to Privacy would be almost certainly thwarted. A successful Bivens suit would require either a change in the makeup of the Supreme Court, or Legislative action finally providing that Bivens suits be written into law.

The arguments for Bivens actions to be expanded are great.[72] The most obvious argument is that the court’s current jurisprudence provides that federal agents may commit actions that violate an individual’s constitutional rights to life, liberty, and property, without any recourse.[73] In Egbert, this meant that federal ICE agents were permitted to invade a private American citizen’s home, abuse him, and then direct the IRS to conduct a retaliatory audit into his financial records.[74] In Hernandez, this meant that federal border officers could shoot a 15-year-old boy merely for running up and touching the US border fence.[75]  In allowing this, the Supreme Court has acted in dereliction of their duties to the Constitution,[76] leaving the American public vulnerable to a federal government and its contractors that may invade their privacy, or inflict any number of constitutional violations upon them without any recourse to the law.[77]

Section 1983 Procedural Questions

1983 actions against state AI-surveillance contractors

There are much stronger grounds for a 1983 suit against state AI-surveillance contractors acting in violation of the public’s Right to Privacy. The crux of a section 1983 suit is to characterize the contractor as performing an essential state function, such that they may be sued in place of the government.

The primary question to ask when analyzing whether a private contractor is liable to a 1983 lawsuit, is the same as when analyzing whether a state official may be held liable – whether the contractor is acting “under color of law.”[78] To act under color of law is to exercise power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”[79]

In West v. Atkins, the Supreme Court held that a private physician under contract to provide medical treatment to inmates at a state-run hospital could be sued under 1983 for providing negligent medical services on an inmate in violation of the inmate’s Eighth Amendment right against cruel and unusual punishment.[80] As the court writes: “Contracting out prison medical care does not relieve the State of its constitutional duty to provide adequate medical treatment to those in its custody, and it does not deprive the State’s prisoners of the means to vindicate their Eighth Amendment rights.”[81]

The same logic can be applied to the “contracting out” that occurs when state law enforcement contract with private surveillance companies to purchase synthesized data-analysis software for purposes of pre-determining criminal risk, and conducting investigations.

There are three additional factors that weigh on whether a state contractor can be characterized as performing an essential government function: (1) the presence of government personnel, or “entwinement” in the contractor’s operations,[82] (2) the degree to which a plaintiff’s injury has been caused by the “joint activity” of the government and the private entity,[83] and (3) the extent to which the relationship between the government and contractor is “symbiotic,” or more mutually beneficial than the usual relationship between the state and a business.[84]

An AI-data surveillance and analysis contractor should almost certainly satisfy these factors, depending on the type of data analysis work provided. Palantir, for one, is known to have a “revolving door” policy of filling its top roles with former high-ranking government officials, potentially satisfying the entwinement factor.[85] Palantir also exists in a relationship with the government that is deeply symbiotic and mutually beneficial. Federal and state governments have a monopoly over the police force, such that they are the only employer Palantir has to tailor its products for, specifically its Gotham law enforcement predicative criminal risk analysis software. Also, Palantir is only able to develop their software by accessing data provided by law enforcement. The same can be said of companies that provide data analysis services for health care claim processing and municipal services. AI data software has become so engrained in the functions of these agencies that they are at least as mutually beneficial as the lessor-lessee relationship mentioned in Burton.[86]

Conclusion

Given that the Supreme Court has held that the Constitution ensures individuals a right to privacy, and has applied this right to limit the government’s ability to access and accumulate large sums of information about American individuals without a warrant, that right should be able to be vindicated in civil court under either section 1983 against the states, or Bivens, the federal equivalent. These lawsuits were intended by the Forty Second Congress to be an expedient method of validating private rights.

As the Supreme Court has restricted the scope of section 1983 and Bivens actions, government officials have engaged in increasingly egregious violations of the public’s civil rights. With no redress in civil courts, plaintiffs are vulnerable to the whims of state and federal officials who now have access to unprecedented surveillance technology. As the dialogue mentioned at the start of this paper shows, this has emboldened the head of the FBI to even gloat that they buy citizens’ location data from wireless carriers in clear violation of the Fourth Amendment.

This paper is written in the hope that, as happened in the years following the Civil War, there may be a reaction against the flagrant injustices that have been committed upon the American people in the last twenty years, since the Patriot Act was enacted into law, and continuing under the Trump administration. Either Congress should pass a law strengthening plaintiff’s access to Bivens actions, or, under a new Supreme Court, the egregious precedents limiting civil rights litigation should be overturned.

As we continue into the twenty-first century, AI-surveillance technology will only become more sophisticated. We must put power into the hands of private individuals to counterbalance this trend and validate their privacy rights against unchecked federal and state governments, and the most efficient way to do so, as the Forty-Second Congress understood, is to reinvigorate American’s ability to bring civil lawsuits against the government for civil rights violations.

 

[1] Sanya Mansoor, Why is the FBI Buying People’s Location Data and How is it Using the Information? The Guardian, (Mar. 19 2026, 6:30 PM), https://www.theguardian.com/technology/2026/mar/19/fbi-buying-location-data-use.

[2] Carpenter v. United States, 585 U.S. 296, 320 (2018) (“We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information. In light of the deeply revealing nature of CSLI, its depth, breadth, and comprehensive reach, and the inescapable and automatic nature of its collection, the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under that Amendment.”).

[3] Note that requiring a warrant to secure cell phone location data would not impede legitimate, particularized police investigations. See Affidavit of Brett Payne, at 11-12, State v. Kohberger, No. CR29-22-2805 (Idaho Dist. Ct. Dec. 29, 2022) (detailing how law enforcement obtained a warrant to access cell phone location around the location of a murder, leading to the capture of a suspect).

[4] Kevin Moriarty, The FTC’s Concerning Inaction on a New Data Protection Law, Just Security, (May 30, 2025), https://www.justsecurity.org/113893/the-ftcs-concerning-inaction-on-a-new-data-protection-law .

[5] See Egbert v. Boule, 596 U.S. 482 (2022) (declining to extend Bivens action against Border Patrol agents who assaulted an informant and directed the IRS to investigate him, in retaliation for the informant refusing to comply with new orders); see also Hernandez v. Mesa, 589 U. S. 93 (2020) (refusing Bivens action against ICE officers who had shot a 15-year-old Mexican national from across the US-Mexico border, who posed no threat).

[6] Michael Price, Remember Why We Have the Fourth Amendment, Brennen Ctr. for Just., (Nov. 25, 2015), https://www.brennancenter.org/our-work/analysis-opinion/remember-why-we-have-fourth-amendment  (explaining how the First and Fourth Amendments were a product of “colonial revulsion” towards “writs of assistance” and “general warrants” used by agents of the British Empire); see also Riley v. California, 573 U.S. 373, 401, 134 S.Ct. 2473, 2494 (2014) (“Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.”).

[7] Carpenter, 585 U.S. at 305 citing Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 29 L.Ed. 746 (1886).

[8] Id. at 305, citing United States v. Di Re, 332 U.S. 581, 595 (1948).

[9] See Katz v. United States, 389 U.S. 347 (1967) (overruling the Olmstead rule, which defined Fourth Amendment violations as an intrusion on an individual’s property or person).

[10] United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring) (“Awareness that the government may be watching chills associational and expressive freedoms. And the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring . . . may alter the relationship between citizen and government in a way that is inimical to democratic society”) (internal cites omitted).

[11] Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. . . . They conferred, as against the government, the right to be let alone.”).

[12] Katz, 389 U.S. 347 (1967); see also Jeffrey L. Vagle, Furtive Encryption: Power, Trust, and the Constitutional Cost of Collective Surveillance, 90 Ind. L.J. 101, 125 (2015).

[13] Smith v. Maryland, 442 U.S. 735, 740 (1979).

[14] Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 479-80 (2011) (internal cites omitted) (reference to Karo also omitted, because the case was overruled by Jones a year after this section was written).

[15] United States v. Jones, 565 U.S. 400, 403 (2012).

[16] Id. at 404.

[17] Id. (Sotomayor, J., concurring).

[18] Riley v. California, 573 U.S. 373 (2014).

[19] Id. at 383-85 citing United States v. Robinson, 414 U.S. 218 (1973).

[20] Riley, 573 U.S. at 384.

[21] Id.

[22] Id. at 394-95.

[23] Id. at 396-97.

[24] Id. (“Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.”).

[25] Carpenter, 585 U.S. at 310-14.

[26] Id. at 300-03.

[27] Id. at 303.

[28] Id. at 309 (“But while the third-party doctrine applies to telephone numbers and bank records, it is not clear whether its logic extends to the qualitatively different category of cell-site records.”).

[29] Id. at 311.

[30] Id. at 316

[31] Warren Buff & Brandon Hasbrouck, Policing as General Warrants, 173 U. Pa L. Rev.1735 (2025).

[32] Id. at 1757.

[33] Peter Waldman et. al., Palantir knows everything about you, Bloomberg  (April, 19 2018), https://www.bloomberg.com/features/2018-palantir-peter-thiel/.

[34] Id.

[35] Nicole M. Bennett, When the Government Can See Everything: How One Company – Palantir – Is Mapping the Nation’s Data, The Conversation (Aug. 27, 2025), https://theconversation.com/when-the-government-can-see-everything-how-one-company-palantir-is-mapping-the-nations-data-263178.

[36] Palantir Granted $30 Million to Build “ImmigrationOS” Surveillance Platform for ICE, Immigration Policy Tracking Project, https://immpolicytracking.org/policies/reported-palantir-awarded-30-million-to-build-immigrationos-surveillance-platform-for-ice (last updated April 18, 2025).

[37] Id.

[38] Lora Kelley, Are ‘Bossware’ Tools Tracking You?, NY Times (March 1, 2026), https://www.nytimes.com/2026/03/01/business/bossware-work-surveillance-tools.html.

[39] Id.

[40] Luke Goldstein & Freddy Brewster, Is Palantir Under Contract to Surveil the Federal Workforce? Jacobin (Mar. 8, 2026), https://jacobin.com/2026/03/palantir-bossware-workforce-surveillance-tech.

[41] Ali Winston, Palantir Has Secretly Been Using New Orleans to Test its Predictive Policing Technology, The Verge  (Feb. 27, 2018)https://www.theverge.com/2018/2/27/17054740/palantir-predictive-policing-tool-new-orleans-nopd; Jay Stanley, New Orleans Program Offers Lessons In Pitfalls Of Predictive Policing, ACLU (Mar. 15, 2018), https://www.aclu.org/news/privacy-technology/new-orleans-program-offers-lessons-pitfalls-predictive-policing (Because Palantir provided this software to New Orleans as a “philanthropic gift,” it did not have to pass a typical public procurement process, meaning that city council members had no idea that NOPD was using this technology).

[42] Palantir and the Northern California Regional Intelligence Center (NCRIC),Security Vision Database (last accessed March 23, 2026) https://www.securityvision.io/wiki/index.php/Palantir_and_the_Northern_California_Regional_Intelligence_Center_(last accessed Mar. 23, 2026)(“From January 2012 to March 2017, about 300 [California] cities, with a total population of 7.9 million, accessed Palantir’s Gotham service through the NCRIC, operated by the Department of Homeland Security.”).

[43] Id. (“While NCRIC plans to switch to SAS, Palantir’s spokesperson stated that the license permits indefinite use.”).

[44] Jennifer Wadsworth, Santa Clara County’s Data-Mining Deal with Palantir Draws Scrutiny From Privacy Advocates, San Jose Inside  (Aug. 22, 2018), https://www.sanjoseinside.com/news/privacy-activists-immigrant-advocates-question-santa-clara-countys-work-with-palantir (detailing contracts the Santa Department of Behavioral Health had with Palantir to process homeless clients’ information).

[45] SAS Enterprise License Agreement, North Carolina Department of Information Technology, NCDIT, https://it.nc.gov/services/enterprise-license-agreements/sas-enterprise-license-agreement (a data fusion system similar to Palantir that has contracts with California).

[46] The Private Companies quietly building a police state, Campaign Zero , https://campaignzero.org/the-private-companies-quietly-building-a-police-state (last updated Oct. 2, 2025) (a facial recognition company that has contracts with NYPD).

[47] Data and analytics solutions for state governments, Optum, https://business.optum.com/en/data-analytics/state-governments.html (a data analysis company that promises to expedite health care services, and the processing of health insurance claims, that has contracts with “over 40” state governments).

[48] Matteo Godi, Section 1983: A Strict Liability Statutory Tort, 113 Cal. L. R. 1933, 1938 (2025).

[49] Id. citing CONG. GLOBE, 42d Cong., 1st Sess. app. 78 (1871) (statement of Rep. Aaron Perry) (“[s]heriffs, having eyes to see, see not; judges, having ears to hear, hear not;” and “all the processes of justice[] skulk away as if government and justice were crimes and feared detection.”).

[50]  See Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 686-87 (1978) (noting that John Bingham, an architect of section 1983, had envisioned the cause of action to include such constitutional violations as occurred in Barron v. Mayor & City Council of Baltimore, 32 U.S. 243 (1833), an early case alleging an unconstitutional taking of property); see also 436 U.S. 658, 686 n. 45 (again, John Bingham’s intent that the act prevent states from violating a variety of rights including the right to own property, the right to free speech, and “the rights of conscience.”).

[51] CONG. GLOBE, 42d Cong., 1st Sess. app. 67–69 (1871) (statement of Rep. Samuel Shellabarger) ([this act will] “touch the liberties and the rights of all people, and doubtless the destinies of the Union.”); see also Mitchum v. Foster, 407 U.S. 225, 238 (1972) (defining the 1871 act as a “basic alteration in our federal system wrought in the Reconstruction era.”).

[52] Monroe, 365 U.S. 167, 175-76 (1961) ([T]he remedy created was not a remedy against [the Klan] or its members, but against those who representing a State in some capacity were unable or unwilling to enforce a state law.)

[53] Act of March 2, 1867, ch. 153, 14 Stat. 428; Act of March 23, 1867, ch. 6, 15 Stat. 2; Act of July 19, 1867, ch. 30, 15 Stat. 14; Act of March 11, 1868, ch. 25, 15 Stat. 41.

[54] Godi supra note 1, 1941.

[55] Id.

[56] Civil Rights Act of 1871, ch. 22, § 1, 17 Stat. 13 (emphasis added).

[57] Monroe v. Pape, 365 U.S. 167, 172-76 (explaining how the activities of the Ku Klux Klan, and southern states’ complicity with those actions were referenced at length when drafting the 1871 act).

[58] Id. (involving police officers’ violent invasion of plaintiff’s home, without a warrant).

[59] Hudson v. McMillian, 503 U.S. 1 (1992) (involving the physical abuse of a Louisiana state prisoner).

[60] Owen v. City of Independence, 445 U.S. 622 (1980)

[61] Los Angeles County v. Humphries, 562 U.S. 29 (2010).

[62] Olivier v. City of Brandon, 607 U. S. ____ (2026).

[63] McDonald v. City of Chicago, P.’s Complaint, 2008 WL 2571757 (N.D.Ill.).

[64] Alexander A. Reinert, “Qualified Immunity’s Flawed Foundation,” 111 Cal. L. R. 201 (2023).

[65] Katherine Mims Crocker, “Reconsidering Section 1983’s Nonabrogation of Sovereign Immunity,” 73 Florida L. R. 523 (2021).

[66] Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389-91 (1971) (involving the unlawful invasion of plaintiff’s house by federal officers, and the unlawful arrest of plaintiff at home in front of his wife and children).

[67] Id., at 397; see also

[68] F.D.I.C. v. Meyer, 510 U.S. 471 (1994).

[69] Ziglar v. Abbasi, 582 U. S. 120,140 (factors as to whether a case presents a new case or not include “the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.”).

[70] See Egbert v. Boule, 596 U.S. 482 (2022) (no Bivens action against border patrol agents assault informant and direct IRS to investigate him, in retaliation for the informant refusing to comply with new orders); see also Hernandez v. Mesa, 589 U. S. ____ (2020) (no Bivens action against ICE officers who had shot a 15-year-old Mexican national from across the US-Mexico border, who according to the pleading, posed no threat to the officer, and had merely been playing a game with friends where they run up and touched the US border fence).

[71] Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001) (no Bivens action against a halfway house under contract with the Bureau of Prisons).

[72] Egbert, 596 U.S. 482, 504-27 (2022) (J. Sotomayor concurrence in part) (“The Court’s decision today ignores our repeated recognition of the importance of Bivens actions, particularly in the Fourth Amendment search-and-seizure context, and closes the door to Bivens suits by many who will suffer serious constitutional violations at the hands of federal agents.”).

[73] Id.

[74] Supra note 28.

[75] Id.

[76] Marbury v. Madison, 5 U.S. 137, 163 (1803) (“The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”).

[77] Richard Frankel, “Regulating Privatized Government Through S 1983,” 76 U. Chi. L. Rev. 1449, 1450 (2009) (describing how the US government has increasingly contracted out military and law enforcement activities to private contractors).

[78] Lake Country Est., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 399 (1979).

[79] U. S. v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941).

[80] West v. Atkins, 487 U.S. 42 (1988).

[81] Id. at 56.

[82] Lebron v. Nat’l. R.R. Passenger Corp., 513 U.S. 374 (1995) (characterizing Amtrak as a state contractor in part because its board of directors consisted entirely of federal officials).

[83] Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296 (2001) (“We have, for example, held that a challenged activity may be state action when it results from the State’s exercise of coercive power, when the State provides significant encouragement, either overt or covert, or when a private actor operates as a willful participant in joint activity with the State or its agents.”) (internal cites removed).

[84] Burton v. Wilmington Parking Auth., 365 U.S. 715, 724 (1961) (a restaurant located inside a government run parking garage had a mutually beneficial relationship with the government).

[85] Inside Palantir’s Expanding Influence Operation, Tech Transparency Project  (Feb. 7, 2025), https://www.techtransparencyproject.org/articles/inside-palantirs-expanding-influence-operation.

[86] Supra note 94.