The powerful but controversial surveillance program known as Section 702 is about to expire and its reauthorization faces political obstacles in the Republican-controlled Congress, despite the White House’s backing.
Administration officials have credited Section 702 with helping to rescue American hostages overseas, enabling the seizure of fentanyl precursor chemicals from China and even preventing a terrorist attack at a Taylor Swift concert in Austria.
“When used properly, [Section 702] is an effective tool to keep Americans safe,” President Donald Trump said in a Truth Social post last month in the midst of war with Iran. “The fact is … it is extremely important to our military. I have spoken to many generals about this, and they consider it vital.”
Trump wants to see an 18-month extension of the law with no changes, or what is known as a “clean” reauthorization.
First passed in 2008 as an amendment to the Foreign Intelligence Surveillance Act (FISA), Section 702 allows national security agencies to gather the texts and emails of foreigners located overseas from U.S. communications providers, without a warrant.
Since Section 702 was passed, and with every subsequent renewal, it has met bipartisan opposition from lawmakers and activists who say the law violates constitutional privacy rights because it does not require a warrant to search the communications for data involving U.S. persons.
“Intelligence agencies must operate within the constitutional protections against warrantless searches against U.S. citizens,” Rep. Michael Cloud (R-Texas), a member of the conservative House Freedom Caucus, posted on X.
National security-minded lawmakers, however, say the tool is indispensable. “It is not hyperbole to say that allowing the 702 program to expire would result in grave damage to U.S. national security,” Rep. Jim Himes (Connecticut), the top Democrat on the House Intelligence Committee, said in a letter to colleagues.
The obstacles to a clean reauthorization appear most daunting in the House, where a number of Democrats and Republicans are insisting on changes, including one that would require a warrant before using the tool.
House Speaker Mike Johnson (R-Louisiana) is struggling to make the math work. He cannot rely on Republican votes alone because of holdouts in the House Freedom Caucus, said two GOP aides, who like some others interviewed spoke on the condition of anonymity because they were not authorized to speak on the record.
“It’s fairly clear that in addition to the usual progressives and civil libertarians opposed to reauthorization without reform, a substantial number of Democrats simply do not want to give Trump this authority without additional guard rails,” said one House Democratic aide. “That makes it very difficult to get to the two-thirds majority needed.”
As the law nears expiration on April 20, a classified opinion issued this month by a U.S. court that oversees the government’s use of FISA found that a proposed method to heighten privacy protections for U.S. persons when analysts search within the raw collected data “could present deficiencies,” according to unclassified talking points the administration sent to the Hill two weeks ago.
The talking points did not specify the precise issue, and the ruling by the Foreign Intelligence Surveillance Court has not been declassified for public release. However, the problem relates to an advanced filter that helps analysts sort through large amounts of data acquired with each query, according to a person familiar with the matter, who spoke on the condition of anonymity because of the matter’s sensitivity.
The court’s objection was first reported by the New York Times.
Though the filtering capabilities are not aimed at U.S. persons, they could be used to access large amounts of U.S. information, the person familiar with the matter told The Washington Post. In the government’s view, these filtering features did not count as queries — formal searches of the vast trove of data collected under 702, which occur under strict protocols — and thus they did not account for them, the person said.
The Justice Department did not respond to a request for comment on whether it would appeal the court’s decision.
The statute requires an accounting of the number of queries overall and, within that, the number of U.S. person queries. In 2024, Congress imposed additional guardrails, such as limiting FBI access to 702 data solely for the purpose of criminal investigations and requiring greater specificity in reporting on U.S. person queries.
But an effort that year to institute a warrant requirement failed — including in a dramatic tie vote in the House.
Reports of the court’s concern were cited by privacy advocates and some congressional aides as a reason Congress should not reauthorize the law without changes and without the administration explaining the querying filter issue.
“How many times will Congress play Lucy-and-the-football with FISA 702 before it accepts that warrantless surveillance always leads to surveillance abuse?” said Jake Laperruque, deputy director of the security and surveillance project at the Center for Democracy and Technology. “This shocking report shows that the FBI continues to hide how many queries it’s running on Americans, and continues to defy the audit requirements that lawmakers treated as essential when they imposed them in 2024.’’
Glenn Gerstell, a former National Security Agency general counsel and a Section 702 proponent, said the court’s concern is “sign that the oversight system is working,” adding that he believes the surveillance power ultimately will be renewed.
According to the Office of the Director of National Intelligence, the FBI made 7,413 U.S. person queries last year. Critics say the filter issue flagged by the court suggests that could be an undercount.
A staff report issued last week by the Privacy and Civil Liberties Oversight Board, an independent U.S. agency, found that Section 702 “remains one of the country’s most valuable tools for foreign intelligence collection.”
While it is too early to fully assess the changes enacted in 2024, the report said, it concluded that they have had “positively impacted” Americans’ privacy and agency compliance with the law.
This month, according to the administration talking points circulated on Capitol Hill, the Foreign Intelligence Surveillance Court approved certifications that would enable the collection to continue for a year even if Congress did not renew the program. But telecommunications firms might still balk at furnishing the data for fear they might be sued, Section 702 proponents say.
In 2024, on the eve of the law lapsing, two major companies informed the government that they would cease providing data at midnight unless the measure was renewed. The Senate voted in the wee hours of the morning to extend the program, but only for two years.
Marianna Sotomayor and Aaron Schaffer contributed to this report.
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