Domestic surveillance fears loom over Congress debate to renew spying power
At issue is Section 702 of the Foreign Intelligence Surveillance Act, which lets spy agencies collect communications of non-U.S. persons located abroad without a warrant. While the authority is legally limited to foreign intelligence, it can sweep in Americans’ texts, emails and phone calls when they communicate with overseas targets.
Those incidental collections — which have sometimes been followed by unauthorized searches of Americans’ communications — have been extensively documented by government oversight bodies in recent years. The findings fueled reforms adopted when Congress last renewed the authority in April 2024. Section 702 is set to expire again after April 19 unless lawmakers vote to extend it.
But this year’s reauthorization debate is unfolding amid a broader set of developments that two congressional aides familiar with the matter say have heightened Democratic lawmakers’ unease about how surveillance authorities could be used in practice.
A series of Trump administration moves in recent months, namely broad national security orders focused on tracking alleged domestic terrorism and aggressive immigration enforcement backed by vast swaths of surveillance technologies, are top of mind. Taken together, aides say, the developments risk pushing a foreign intelligence authority designed for overseas threats closer to domestic law enforcement and immigration use cases.
The aides spoke on the condition of anonymity to discuss sensitive matters related to the reauthorization process.
Some lawmakers and civil liberties groups argue a warrant should be mandated for searches of collected 702 data that include U.S. persons’ communications, as it would create legal safeguards to protect Americans against unreasonable searches under Fourth Amendment protections. A warrant for such queries has been historically opposed by law enforcement and intelligence officials, who argue they can slow down timely investigations.
Efforts to require warrants for 702 searches involving Americans’ communications came close to success during the 2024 reauthorization debate, when a House amendment failed after a 212–212 tie vote.
“The fact of the matter is this issue is timely … because of the current American awareness of the Fourth Amendment to the Constitution,” Sen. Dick Durbin, D-Ill., the ranking member on the Senate Judiciary Committee, said during a Jan. 28 hearing on the spying power.
“We’re talking about situations in Chicago and Minneapolis, where warrantless searches lead to helicopters landing on the roof of an apartment building, people crashing down the front doors of homes without a warrant,” Durbin added. “It appears that Americans don’t care for that any more than they did at the time of the British controlling this country. It appears that people want to know: by what right are you doing this to me?”
“So the administration, a number of months ago, secretly decided that agents can break into homes without a judicial warrant. Basically, they said the Fourth Amendment doesn’t matter anymore,” Sen. Ron Wyden, D-Ore., said the following day in the Senate Intelligence Committee hearing held for President Donald Trump’s nominee to lead Cyber Command and the NSA. He was referring to an internal ICE memo reported last month that permits immigration officers to enter a home without a judicial warrant.
Domestic spying concerns have also become more acute following changes made to Section 702 during its 2024 renewal under then President Joe Biden. The update added new foreign intelligence collection avenues related to immigration and drug trafficking, both of which are major components of the second Trump administration’s maximal homeland security agenda.
The renewal also expanded the definition of communications service providers that can be compelled to assist with 702 collection, a change that is widely believed and has been reported to include data centers. While the Biden administration pledged to narrowly interpret the revised statute, particularly around its expanded definition of a service provider, those assurances do not bind future administrations, one of the aides contended. As a result, the aide said, the changes risk sweeping in large volumes of innocent U.S.-person communications that could be unlawfully queried under demands from the administration.
Against that backdrop, FBI officials have privately warned Hill staffers in recent weeks that the bureau is concerned about Section 702 lapsing altogether, according to one of the congressional aides and a third aide familiar with the bureau’s position.
In recent hearings that have discussed 702 renewal, “we haven’t heard anybody really say we should get rid of 702. Everyone recognizes that Section 702 is one of the most powerful tools our national security community has, because it helps us keep track of foreign terrorists, drug trafficking, narco terrorists, sanctions evaders, et cetera,” Glenn Gerstell, the former general counsel of the NSA, said in an interview. “So it’s clear that it’s needed, and it’s the best tool we’ve got. And that’s been proven again and again. I think there’s a very strong culture of compliance in the agencies that handle this.”
“I’m not saying that errors and mistakes can’t happen,” added Gerstell. “But I think with the series of reforms that have been put in place, this should give most people comfort. I do recognize that the political atmosphere on both Republicans’ and Democrats’ sides is very fraught, and that that could lead to the statute either not being passed or being passed only with some amendments that make it less effective.”
The FBI and other major national security components have long viewed Section 702 as a cornerstone spying tool. Much of the reforms placed in the last reauthorization cycle were focused on the FBI, including a quarterly directive for the bureau to tell Congress the number of U.S. person searches it conducts.
Collected 702 communications are stored in classified databases, where analysts query them for foreign intelligence. Search terms — known officially as “selectors” — can include names, phone numbers or email addresses of targeted individuals.
Because a warrant is not required under the program, the Foreign Intelligence Surveillance Court signs off on the rules that govern how analysts choose their targets and how they handle any U.S. communications swept up in collection procedures. Analysts may query stored U.S. person data when they believe doing so is reasonably likely to return useful info for investigations.
U.S. intelligence agencies ran far more searches in 2024 using identifiers linked to known or suspected Americans while hunting for foreign cyber and terrorism threats in Section 702 data, according to a government transparency report released last May. The FBI, by contrast, cut back on its own direct searches of U.S. person data after new safeguards took effect that year. Officials have not yet released 2025 figures.
Growing concerns on Capitol Hill about how homeland surveillance authorities could be applied more broadly could affect how some lawmakers approach upcoming votes on Section 702, said David Aaron, a former prosecutor in the Justice Department’s National Security Division.
“To the extent the Executive Branch argues that immigration is a national security matter and invokes the language of war and invasion, skeptics of Section 702 may grow concerned that targeting of non-U.S. persons outside the United States, and/or queries about persons within the United States, could be used in support of efforts to identify, investigate, locate, and/or apprehend individuals or even people or organizations that support them,” Aaron wrote in an email.
“The [Foreign Intelligence Surveillance Court] provides an important check, but critics could be concerned that the absence of advance judicial review and authorization of individual targeting or query decisions could provide an opportunity for expansive interpretations of Section 702 authorities consistent with how the Executive Branch has referred to immigration issues in other contexts,” he added.
So far, multiple components of the intelligence community have said the administration has not taken a position on whether to support reauthorization or reforms, and the Trump administration has not indicated whether it would send officials to Capitol Hill to publicly testify about its stance, one Hill aide said.
The Office of the Director of National Intelligence, led by Tulsi Gabbard, has also not made outreach to civil liberties groups to discuss their stances about 702, according to three other people familiar with the matter. Notably, in written questions during her confirmation hearing, Gabbard said warrants “should generally be required before an agency undertakes a U.S. Person query of FISA Section 702 data, except in exigent circumstances, such as imminent threats to life or national security.”
Nextgov/FCW has asked the FBI, White House and the Office of the Director of National Intelligence for comment.
Intelligence agencies regard Section 702 as a critical tool for foreign spying, though privacy groups say the government has historically conflated the program’s benefit with its scope. Some argue the intelligence gained under the program doesn’t justify the breadth of American communications that can be gathered in the process.
“Reauthorizing 702 without meaningful reforms would double down on a system that has seen repeated and systemic abuses,” said Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union. “Any renewal must have fundamental reforms, including a warrant rule.”
“A clean reauthorization of the program would be an unacceptable outcome,” said James Czerniawski, who heads emerging technology policy at the Consumer Choice Center. “Congress can pass meaningful reforms to Section 702 to provide adequate protections for Americans against government surveillance while keeping our country safe from threats.”
Another variable in the debate will be the president himself. During the 2024 reauthorization cycle, Trump — then a presidential candidate — publicly called for Congress to “kill” the Foreign Intelligence Surveillance Act, though he was conflating the specific 702 authority up for renewal with the broader law in which it’s housed.
His demand stemmed from FBI-led investigations into his 2016 campaign’s ties to Russia, specifically the FISA warrants used to surveil former advisor Carter Page, which he and his allies characterized as a “weaponization” of the intelligence community.
But one former senior intelligence official, requesting anonymity to speak freely, said that if any legislative paralysis holds up the law from being reauthorized or if a measure is added that lowers the statute’s effectiveness, it could put Americans in danger.
“Either we will have missed some important piece of intelligence, or will have failed to avert a terrorist attack, or we’ll go back and say, ‘Gosh, had we known this or that, or we would have been able to capture these drug cartel members earlier,’” the former official said. “And we’ll know about it only after it’s too late.”
]]>