Privacy and surveillance specialists, along with bipartisan US lawmakers, recently expressed concerns that the Federal Bureau of Investigation’s ongoing warrantless access to American communications, facilitated by a controversial surveillance statute, risks transforming a foreign intelligence instrument into a mechanism for domestic espionage.
During testimony before the House Judiciary Committee, four experts—a former US attorney, a conservative litigator, a civil liberties advocate, and a tech-policy analyst—called on Congress to mandate a probable-cause warrant for searches within the extensive government database created under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Alternatively, they suggested allowing this authority to lapse when it is due for reauthorization in the upcoming spring.
Brett Tolman, a former US attorney in Utah and ex-Senate Judiciary Committee counsel, stated that Section 702 was presented to Congress as a critical tool for targeting foreign adversaries. He recalled receiving strong assurances that it would not be misused against American citizens, a promise he now considers false.
Tolman further asserted that for many years, this authority has increasingly served as the government’s justification for warrantless surveillance of Americans.
The current political and legal climate intensifies these concerns, particularly given the more aggressive use of executive power. A federal court has ruled that warrantless “backdoor searches” of Americans’ Section 702 data constitute Fourth Amendment searches and were unconstitutional in at least one FBI case. Concurrently, President Donald Trump has appointed officials like attorney general Pam Bondi, FBI director Kash Patel, and director of national intelligence Tulsi Gabbard, who publicly support Section 702, yet face considerable doubt from both Democrats and some Republicans regarding the potential politicization of law enforcement.
During Thursday’s hearing, committee members alleged that the White House is already consolidating extensive federal data and issuing directives that target groups based on political ideologies. This raises fears that a tool designed for foreign surveillance could be redirected against domestic adversaries unless Congress establishes judicial oversight before Section 702’s expiration on April 20, 2026.
An uncommon alliance against the Section 702 program has emerged, spanning various political and ideological viewpoints. Liberal Democrats, who harbor significant distrust of the administration’s domestic intelligence operations, have found common ground with conservative critics of “the deep state.”
Representative Pramila Jayapal, a Democrat from Washington, emphasized that the Constitution remains constant regardless of which party holds the presidency. She noted that she has challenged both parties, whether in power or opposition, and had previously advocated for FBI limitations even when Democrats were in control.
Enacted in 2008 and subsequently renewed multiple times, Section 702 permits the government to mandate US technology and communications firms to provide communications from non-US individuals believed to be abroad for foreign intelligence objectives, all without a specific court order. Within the intelligence community, this program is frequently regarded as highly valuable and is among the few surveillance authorities that Congress has consistently reauthorized, lending it significant democratic legitimacy.
This authorization is deemed necessary because the data collection inherently includes emails, texts, and calls involving individuals within the United States who communicate with foreign persons overseas. These individuals do not need to be linked to terrorism or crime to be considered a potential target.
These communications are stored in extensive government databases managed by the National Security Agency and shared with the FBI, CIA, and the National Counterterrorism Center, which serves as the federal hub for terrorism intelligence. Agents can “query” these databases using Americans’ names, phone numbers, or email addresses to find matching previously collected communications, all without judicial oversight. Civil liberties experts refer to this practice as a “backdoor search.”
Lawmakers and witnesses indicated that Thursday’s hearing marked an initial stage in what is anticipated to be a contentious battle over the program’s reauthorization in the months ahead.
Liza Goitein, codirector of the Liberty and National Security Program at the Brennan Center for Justice, informed lawmakers that Section 702 has significantly deviated from the foreign terrorism program Congress intended to authorize almost two decades prior. She testified that while Congress envisioned it as a foreign terrorist surveillance program, it has evolved into a substantial source of warrantless access to Americans’ communications over the past 17 years.
Goitein highlighted that while the statute requires the government to assure a secret court that Section 702 is not being used to circumvent protections for specific Americans, once the data is acquired, all agencies receiving it regularly conduct warrantless electronic searches for the communications of known American individuals.
She described this as a deceptive practice that severely undermines the Fourth Amendment.
Public transparency reports indicate that the FBI performed over 57,000 such searches in 2023. Although intelligence officials claim a significant reduction in this number following recent reforms in the last reauthorization bill, witnesses and several committee members cautioned that these new figures might be deceptive due to the FBI’s unannounced alteration of its “query” definition.
These reforms, which mandate supervisory or attorney preapproval, written justifications, and audit-ready logging, were implemented last year following the passage of the Reforming Intelligence and Securing America Act (RISAA). RISAA reauthorized the collection until April of the following year. While seemingly designed to tackle systemic Fourth Amendment violations since Section 702’s beginning, these reforms did not include a warrant requirement or robust, automatic external oversight of FBI queries, effectively permitting the bureau to largely self-regulate.
Goitein stated on Thursday that the actual number of FBI queries conducted in 2024 is unknown. She clarified that the figure in the annual statistical report represents only known queries, leaving the total number and the FBI’s compliance rate uncertain.
Conversely, proponents of RISAA’s 2024 reforms contend that Congress has already implemented substantial measures to curb misuse and should not eliminate what they consider essential tools.
Representative Laurel Lee, a Florida Republican and co-author of RISAA, asserted that two facts were clear from the hearing: first, significant failures occurred under previous FISA and Section 702 authorities, especially concerning FBI queries of US-person data; and second, Congress responded by implementing reforms that are now demonstrably effective.
Lee referenced a Justice Department inspector general review, mandated by RISAA, which reported a substantial decrease in noncompliant queries and concluded that widespread improper searches “no longer appear to be occurring,” with any remaining errors being primarily administrative or typographical. However, witnesses and a bipartisan group on the committee argued that these new safeguards are insufficient, particularly if the FBI can unilaterally redefine fundamental terms such as “query.”
Representative Andy Biggs, an Arizona Republican, questioned witnesses on whether an FBI supervisor’s approval for accessing sensitive data could be considered equivalent to an independent judge requiring probable cause before issuing a warrant.
Gene Schaerr, a conservative constitutional litigator who represented former Trump campaign adviser Carter Page in a lawsuit concerning a flawed FISA warrant, responded definitively, stating that the Constitution establishes the Article III branch as an independent check on the executive branch to safeguard Americans’ privacy.
Goitein highlighted the differing standards, noting that “probable cause” is distinct from “reasonably likely to produce foreign intelligence,” which is often the benchmark for many internal approvals.
Tolman, reflecting on his prosecutorial background, mentioned that supervisors seldom challenged his requests for judicial warrants. He suggested that allowing FBI managers final say, rather than a court, fosters a different mindset, where the Fourth Amendment is often perceived as inapplicable in national security contexts, leading to less concern for constitutional protections.
In addition to the warrant requirement, witnesses and lawmakers focused on the wide range of entities that can be compelled to assist the government in collecting communications, as well as the increasing trend of the government purchasing Americans’ data from commercial brokers. RISAA broadened the definition of “electronic communication service provider” to encompass any service provider with access to equipment capable of transmitting or storing communications.
Goitein informed lawmakers that this new language is so expansive that it effectively includes almost every American business and numerous organizations, as they all provide some form of service and possess communication equipment like phones or computers.
She explained that commercial landlords of buildings where millions of Americans work daily could be compelled to aid government surveillance. Unlike major tech companies, these entities often cannot isolate specific messages, potentially requiring them to grant NSA personnel “direct access to their communications equipment and all the communications that run through that equipment, including purely domestic communications.”
James Czerniawski, a senior policy analyst at the Consumer Choice Center, a free-market think tank, criticized the expansion as “way too expansive,” stating it has drawn many businesses into the surveillance apparatus without their intent. He pointed out that the Information Technology Industry Council, a prominent tech trade association, unusually called on Congress to narrow this definition.
The panel also discussed the “data broker loophole,” which refers to agencies’ capacity to acquire location, browsing, and other sensitive data about Americans from private companies without needing a warrant.
Goitein confirmed this practice is frequent, citing the FBI, DEA, Secret Service, Homeland Security, Defense Department, and IRS as agencies that have bought cell phone location data. She highlighted that while the Supreme Court has ruled historical cell-site location information is Fourth Amendment protected when directly requested, agencies assert they can purchase this same data from brokers without a warrant.
Tolman indicated that the confidentiality surrounding these contracts and purchases hinders Congress and the courts from enforcing any limitations.
He argued that without transparency regarding these activities and contractors, it is challenging to halt such data use, advocating for third-party reviewers and stricter controls on data acquisitions.
Czerniawski further stated that these reforms would neither eliminate surveillance nor impede legitimate national security operations, asserting that the nation would not be left vulnerable.
Schaerr suggested that implementing a warrant requirement for Section 702 and increasing the involvement of independent “amicus” lawyers in politically sensitive cases could have averted some significant abuses, such as the problematic warrants used to surveil Page.
Ultimately, the witnesses contended, the core issue is whether Section 702 will continue as a foreign intelligence tool bound by standard constitutional limitations, or persist in what Tolman characterized as a pattern of “systemic failure, constitutional betrayal, and disregard for the rule of law.”
Jim Jordan, the committee’s Republican chairman, summarized the situation concisely:
He concluded that the proven method of seeking a probable-cause warrant from an independent and co-equal branch of government is the solution, implying its straightforwardness.
