Why Congress is fighting over a central tool of American surveillance

A computer workstation bears the National Security Agency logo inside the Threat Operations Center in the Washington suburb of Fort Meade, Md. Paul J. Richards/AFP via Getty Images

Paul J. Richards/AFP via Getty Images

A key tool of the U.S. spy community will expire this month without action from Congress. The government says the intel gathered through the provision — Section 702 of the Foreign Intelligence Surveillance Act, or FISA 702 — underpins a majority of the articles in the president's daily intelligence briefing and is a key asset in the fight against international counterterrorism and trafficking.

But a number of lawmakers, both Republicans and Democrats, are concerned that FISA 702 allows for the federal government to spy on the communications of American citizens without a warrant, violating their constitutional right to privacy.

The looming fight to bolster the law's civil liberties protections is likely to be bruising — and the provision's advocates claim it could jeopardize national security.

What is Section 702 of the Foreign Intelligence Surveillance Act?

Section 702 of FISA empowers U.S. intelligence agencies to collect and review the electronic communications of foreign nationals located outside the United States without obtaining individual court orders.

Sometimes, foreign nationals communicate with people in the United States, leading to incidental collection of Americans' communications.

The Office of the Director of National Intelligence says the government uses the information collected through the program to protect the U.S. and its allies from foreign adversaries — including terrorists and spies — as well as to inform cybersecurity efforts.

"No one denies the immense intelligence value of Section 702," Stewart Baker, former National Security Agency general counsel, told Congress in January.

"The U.S. government recently credited the program with helping to disrupt several terrorist attacks here and abroad, identify the Chinese origins of imported fentanyl precursors, respond to ransomware attacks on U.S. companies, identify Chinese hackers' intrusions into a network used by a key U.S. transportation hub, and disrupt foreign government efforts to carry out kidnappings, assassinations, and espionage on U.S. soil. Those examples just scratch the surface," Baker said.

Why is Congress debating this now?

The program's 2024 authorization is set to expire on April 20 — unless Congress votes to renew it. Congress has always attached an expiration date to Section 702, which makes its renewal a recurring fight on Capitol Hill.

Civil liberties-minded legislators of both parties have long been concerned that Section 702 enables illegal, warrantless surveillance of American citizens by the federal government. And unlike most issues in contemporary politics, the issue doesn't break cleanly along party lines.

Prominent critics include Sen. Mike Lee, R-Utah, Sen. Ron Wyden, D-Ore., and Rep. Warren Davidson, R-Ohio.

But, with a change in administration since the last renewal battle, some lawmakers have switched sides.

Rep. Darrell Issa, R-Calif., who previously voted against the renewal because of its lack of a warrant requirement to query information about Americans, told The Hill he thought reforms to the program were working.

Rep. Jamie Raskin, D-Md., is working to rally his colleagues against a renewal — after voting for it in 2024.

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President Trump supports an extension with no changes to the program.

"When used properly, FISA is an effective tool to keep Americans safe. For these reasons, I have called for a clean 18-month extension," Trump wrote in a March post on Truth Social. "With the ongoing successful Military activities against the Terrorist Iranian Regime, it is more important than ever that we remain vigilant, PROTECT our Homeland, Troops, and Diplomats stationed abroad, and maintain our ability to quickly stop bad actors seeking to cause harm to our People and our Country."

That position is a major shift for Trump, who railed against the program in the past. Ahead of the last renewal vote in April 2024, during the Biden administration, Trump posted "KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS."

How is the information actually collected?

A special court, the Foreign Intelligence Surveillance Court (FISC), issues a blanket authorization each year that allows the government to collect information about any targets who fall within certain categories proposed by the attorney general and director of national intelligence.

The National Security Agency, National Counterterrorism Center, Central Intelligence Agency and FBI obtain that information directly from the U.S. companies that facilitate electronic communication such as email, social media or cellphone service.

The National Security Agency also collects communications "as they cross the backbone of the internet with the compelled assistance of companies that maintain those networks."

What role does Section 702 play in the landscape of American intelligence gathering?

A massive amount of information is collected under Section 702 authority: There were 349,823 surveillance targets in 2025, up from about 246,000 in 2022. Targets could each have many records collected — think about the number of emails that hit your inbox each day — leading to a giant database of information.

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In 2023, 60% of the president's daily brief items — a daily summary of pressing national security issues prepared for the most senior administration officials — contained Section 702 information, according to a government release.

It is also used extensively to combat weapons and drug trafficking — 70% of the CIA's illicit synthetic drug disruptions in 2023 stemmed from FISA 702 data, the document said.

Can the government search for Americans' information inside the trove of information it has collected under Section 702?

Yes, under certain parameters that have been gradually narrowed over the nearly two-decade lifespan of the legislation.

Here are some of the reasons the government says it might search for Americans, as included in a public report from the Office of the Director of National Intelligence (ODNI):

• "Using the name of a U.S. person hostage to cull through communications of the terrorist network that kidnapped her to pinpoint her location and condition;
• Using the email address of a U.S. victim of a cyber-attack to quickly identify the scope of malicious cyber activities and to warn the U.S. person of the actual or pending intrusion;
• Using the name of a government employee that has been approached by foreign spies to detect foreign espionage networks and identify other potential victims; and
• Using the name of a government official who will be traveling to identify any threats to the official by terrorists or other foreign adversaries."

Does the government need specific permission from a court to search for an American's information?

No, the government does not need — and has resisted reforms that would require — a targeted court order to search for an American's information in corpus of material gathered under Section 702 authority.

Intelligence community and FBI advocates argue that a requirement to obtain a court order to query an American's information would be overly burdensome.

"I am especially concerned about one frequently discussed proposal, which would require the government to obtain a warrant or court order from a judge before personnel could conduct a 'U.S. person query' of information previously obtained through use of Section 702," then-FBI Director Christopher Wray told Congress in 2023, amid the last reauthorization fight.

"A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have. That would be a significant blow to the FBI," Wray said.

What do civil liberties and privacy advocates say about the legislation?

Privacy advocates say that, as written, the FISA statute allows the government to spy on the communications of Americans and others in the U.S. without the permission of a court, in contravention of the privacy guarantees in the Fourth Amendment.

"The FBI — and every other agency that receives Section 702 data — routinely goes searching through that data for the express purpose of finding and using Americans' communications," according to Elizabeth Goitein, senior director of the Brennan Center's Liberty and National Security Program. "The government conducts literally thousands of these backdoor searches every year."

Lawmakers in support of reforming Section 702 share her concern.

"The Foreign Intelligence Surveillance Act is supposed to be about surveilling foreigners overseas. That way the government doesn't need a warrant," Sen. Wyden told The Lever. "But because so many of these targets are going to be talking to Americans, Americans get swept up in these searches, and that's what I want to have some checks and balances on."

Rep. Tim Burchett, a Tennessee Republican, said in a video that his concerns stem from past privacy violations from the government: "The system was abused and they spied on thousands of Americans, violated the Fourth Amendment of the Constitution — and, well, it was a horrible situation."

Has Section 702 information been improperly used to surveil American citizens?

Yes, the Foreign Intelligence Surveillance Court characterized the FBI's violations as "persistent and widespread" in a 2022 court document that recertified the 702 program.

Documented abuses, detailed in congressionally mandated transparency reports from the Office of the Director of National Intelligence, include warrantless searches for a U.S. senator, journalists and political commentators, 6,800 Social Security numbers, 19,000 donors to a congressional campaign and an FBI employee's family member, who the employee's mother suspected of having an extramarital affair. Anti-surveillance advocacy group Demand Progress put together a detailed timeline of major violations by the FBI and intelligence agencies, as identified by the FISC.

What are the current restrictions on queries for Americans' information by federal law enforcement?

FBI agents must receive annual training on FISA and are generally prohibited from searching for information about people in the U.S. if the sole goal of the search is to investigate general criminal activity, rather than find foreign intelligence information, and those searches need approval from a supervisor or an attorney.

More senior approval is required when searching for information connected to U.S. political or media figures. Moreover, information from queries cannot be used without court authorization to conduct criminal investigations of people in the U.S., unless the charges pertain to national security, death, kidnapping, serious bodily injury, or a handful of other serious crimes.

According to disclosures from the bureau, the number of searches for Americans has declined dramatically in recent years — from 119,383 queries from December 2021 to November 2022 to 7,413 queries in the same 2024-2025 window.