With a statutory deadline fast approaching, Congress is immersed in what has become one of its most enduring and internally divisive fights: whether – and how – to preserve government foreign surveillance powers while protecting the civil liberties of Americans whose communications get swept up in the intelligence-gathering.
The U.S. House of Representatives voted early Friday to approve a 10-day stopgap extension to Section 702 of the 1978 Foreign Intelligence Surveillance Act (FISA), which had been set to expire April 20. That came after a five-year extension, with new provisions to address critics’ concerns, failed on the House floor. Now the Senate must also pass a short-term extension, to buy Congress more time on the issue.
The votes, defying a simple party-line split, reflect a debate that has simmered for decades. The renewal is opposed by a mix of liberals and privacy-minded conservatives. The issue is highlighting larger tensions over balancing national security with personal liberty – tensions that are only growing amid political turmoil at home and abroad, and the rise of technologies like artificial intelligence.
Why We Wrote This
A section of the Foreign Intelligence Surveillance Act, designed to help head off terrorist attacks, is also seen as a threat to civil liberties if misused. Members of Congress have been split across party lines as they wrestle with what to do ahead of a Monday deadline.
President Donald Trump was once a bitter critic of FISA, which he said allowed the government to spy on his 2016 campaign. But in recent weeks, he has urged lawmakers to reauthorize Section 702, crediting it for military successes in Venezuela and Iran.
What is FISA Section 702 all about? The provision, added to the law in the wake of the 9/11 attacks, regulates who has access – and for what purposes – to a database of communications gathered by U.S. intelligence agencies on foreign targets. When Americans communicate with such targets, their information gets swept into Section 702 databases that are accessible by the FBI.
Critics charge that FBI queries of the database violate the Constitution’s Fourth Amendment, which prohibits searches unless there’s a judicial warrant that specifically lists what is to be searched and attests that there is probable cause to suspect a crime. They urge a legal change to require warrants to access any 702 data on Americans.
Supporters of the existing system say that an effective intelligence-sharing system could have prevented the Sept. 11, 2001, attacks or the 2009 Fort Hood attack. In both cases, the U.S. held crucial intelligence information but failed to get it into the right hands and act on it.
By a 200 to 220 vote, the House rejected a compromise extension bill imposing warrant requirements.
The process of obtaining a warrant would prevent investigators from revealing crucial information, argues Adam Klein, a law professor and director of the Robert Strauss Center for International Security and Law at the University of Texas. He was deeply involved in FISA and 702 issues as a former chairman of the U.S. Privacy and Civil Liberties Oversight Board.
“Imagine that, today, an FBI agent is checking out a tip that a person inside the United States is expressing support for ISIS [Islamic State], asking questions about martyrdom, and posting online about buying weapons. That’s enough to talk to community members about the person and check FBI databases, but you can’t get a warrant at that stage,” Mr. Klein says.
“If the government had already collected messages between that person and an ISIS terrorist overseas, that’s extremely alarming. We’d want the agent to know that, right away. But requiring a warrant at that stage,” he says, “would mean that the agent couldn’t check those records – records the government already has. You’d never know the information was there.”
The gains from surveillance
Stewart Baker, former general counsel for the National Security Agency, testified to the Senate on Jan. 28 that Section 702 information helped identify the Chinese origins of imported fentanyl precursor chemicals, respond to ransomware attacks on U.S. companies, and disrupt foreign-government kidnappings, assassinations, and espionage on U.S. soil.
He noted that in 2001, intelligence agencies knew that an Al Qaeda house in Yemen was in communication with people in the U.S. The 702 capability did not exist then, but if it had and the Saudi hijackers behind the Sept. 11 attacks had been checked, the tragedies of that day might have been averted.
“If we had had a system where you could quickly identify people in the United States having conversations with terrorists, we almost certainly would have caught those guys. They were in the U.S. for weeks or months before the attacks,” Mr. Baker said.
Similar failures occurred in the case of Nidal Hasan, the soldier who killed 13 people at Fort Hood in 2009 after exchanging 20 emails with ISIS propagandist Anwar al-Awlaki. If soldiers and people with security clearances were routinely checked against the 702 data, such communications would be revealed and a tragedy might be averted.
Critics, however, say such practices would cross a line into improper invasion of privacy. More broadly, they worry about the implications of an ever-growing surveillance state at a time when democracy seems to be under strain.
“The government is collecting vast quantities of communications from Americans. They don’t even know how much. And then it is searching through those communications without first obtaining a warrant, which fundamentally violates the Fourth Amendment,” which guards against unreasonable searches, says Kia Hamadanchy, senior policy counsel on national security issues for the American Civil Liberties Union.
Many opponents of the present FISA law also want reforms to include a ban on the government buying personal information from data brokers that would otherwise require a warrant. After Edward Snowden’s revelation that government was vacuuming up phone records on all Americans in bulk, Congress outlawed the practice with the 2015 USA Freedom Act.
“The government is now buying everyone’s data in bulk from commercial data brokers. This is not part of FISA but there is no law governing data brokers. If there ever was a time to fix this loophole, now is the time to do it,” says Jake Laperruque, deputy director of the Security and Surveillance Project at the Center for Democracy & Technology.
Catching criminals or risking rights?
Cybercrime is one area where 702 data can identify when scammers are trying to victimize innocent Americans. Tracing communications from criminals to their targets could help prevent crime, but there is usually no probable cause. Mr. Hamadanchy argues that the call for warrants does not prevent such efforts, because there are exceptions built into the alternative bills.
Congress has already taken some steps to rein in abuses of 702 data. In 2024, it passed the Reforming Intelligence and Securing America Act. A vote at the time to include a warrant requirement failed in a tied House vote. Instead, Congress settled on 56 reforms, including quarterly reports to Congress, required annual FISA court approval of procedures, audits to ensure rules are followed, penalties for abuses, and congressional access to FISA courts. And before agents can query the 702 data, they must log their reasons for the inquiry and obtain supervisor approval.
This week, Ohio Rep. Jim Jordan, the Republican chair of the House Judiciary Committee, told the House Rules Committee that he changed his views on FISA warrants because of the success of the 2024 reforms.
“Last year, the FBI reported conducting just 9,089 queries on U.S. persons. Of those, 127 did not comply with the rules. … In light of the progress that has been made and the threats that we face, we think a temporary short-term extension makes sense now,” he said.
But divisions over extending Section 702 cross party and ideological lines. Opponents in the Senate include Democrats like Oregon Sen. Ron Wyden and Illinois Sen. Dick Durbin, as well as Republicans like Sens. Rand Paul of Kentucky, Mike Lee of Utah, and Josh Hawley of Missouri. In the House, those opposed range from Democratic Reps. Pramila Jayapal of Washington, Jerry Nadler of New York, and Ro Khanna of California, to Republicans like Reps. Andy Biggs of Arizona, Lauren Boebert of Colorado, and Anna Paulina Luna of Florida.
Experts say President Trump’s lobbying for an extension likely increased some Democrats’ suspicion of the provision. “Trump’s general reputation among Democrats is such that it undercuts the case for an easy renewal of 702,” says Liza Goitein, senior director of the Brennan Center for Justice who focuses on FISA issues. She says Mr. Trump removed several members of the U.S. Privacy and Civil Liberties Oversight Board that oversees FISA, which means the board no longer can monitor 702 compliance because it lacks a quorum.
A classified court decision cast further doubt on the effectiveness of the 2024 reforms. Last year, the Department of Justice brought information to the Foreign Intelligence Surveillance Court that FBI agents had been using a software filtering tool that effectively allowed queries without having to log the inquiry purpose or obtain approval. Ms. Goitein argues that this end-run system was used for an unknown number of inquiries and mitigates the appearance of progress cited by Representative Jordan and others. The court order remains classified, but the White House sent unclassified talking points to Congress that acknowledged that the issue must be appealed or the filtering tool removed.
A Brennan Center report on the court case noted, “The actual number of U.S. person queries for 2024 remains unknown and likely unknowable. And because no audits of these queries were conducted, the reported increase in compliance cannot be taken at face value. We simply do not know the extent or nature of any abuses that might have occurred during this period.”
