The nation’s intelligence court has renewed its approval of a high-profile warrantless surveillance program known as Section 702, allowing it to operate for another year, the Trump administration has told Congress.
The annual recertification, issued last month in a classified ruling, means that the program can continue to collect phone calls and emails through March 2027 — even if Congress fails later this month to renew the statute that underlies it. The law is set to expire on April 20.
But the judge who issued the March 17 ruling also objected to tools that agencies with access to the raw data — like the C.I.A., F.B.I. and National Security Agency — have created to allow analysts to process messages, according to unclassified talking points the administration sent to lawmakers in recent days.
Those talking points, a copy of which was obtained by The New York Times, did not explain what the judge took issue with. A person familiar with the matter said the problem involved filtering systems that allow analysts to pare down the broader results of a query focused on a foreigner in order to get the information of specific people who communicated with that foreigner.
When such a filter is used to look for the messages of an American, the court ruled, that counts as a query for Americans’ information, which is subject to extra limits.
The court’s ruling requires the agencies to re-engineer the filter tools to comply with rules for queries for Americans’ information, said the person, who spoke on the condition of anonymity to discuss a sensitive issue. If the government does not, it apparently must stop using the functions.
The administration is still weighing whether to comply or appeal, the talking points said.
Section 702 allows the government to collect — on domestic soil and without a warrant — the communications of foreigners abroad, including when those people are interacting with Americans. Under the law, the National Security Agency can order email providers like Google and network operators like AT&T to turn over messages of targeted foreigners.
The program is a major source of foreign intelligence, counterterrorism and counterespionage information. In 2025, there were 349,823 foreigners targeted under the program, up from 291,824 in 2024, according to recently declassified surveillance data.
Congress first enacted the statute in 2008, legalizing a form of a once-secret warrantless wiretapping program that the Bush administration established after the Sept. 11 terrorist attacks. Lawmakers built an expiration date into the statute to ensure periodic review, and it has been renewed and tweaked several times.
The Trump administration wants Congress to extend the statute without changes. But privacy advocates in both parties want to require the government to get warrants before gaining access to Americans’ communications in the Section 702 repository, and to ban it from buying Americans’ data from brokers if it would need a warrant to obtain that information directly.
As the deadline approaches, both sides have intensified their lobbying. Supporters of extending Section 702, such as Representative Jim Himes of Connecticut, the top Democrat on the House Intelligence Community, have argued that allowing the program to lapse “would put the American people at severe risk.”
The court’s finding of the filtering problem could give privacy advocates a new counterargument. Elizabeth Goitein of the Brennan Center for Justice said it “undermines the core case for a straight reauthorization of Section 702, which is that agencies’ queries over the past two years have all been above board, carefully tracked and fully reported.”
But the new annual certification could provide something of a safety valve. A key provision in the statute says that, notwithstanding anything else in the law, its orders, authorizations and directives “shall continue in effect” until their expiration dates. That means the program can likely continue operating until the certifications expire in March 2027, even if Congress allowed the underlying statute to lapse earlier.
Still, when Section 702 last came up for reauthorization in April 2024, the Biden administration warned against letting the statute lapse even briefly. Officials said some providers might cease cooperation, and even if the government went to court to compel their continued compliance, there could be gaps in data collection before orders took effect.
The government typically declassifies and releases a redacted version of the annual court rulings on the Section 702 program. Those opinions usually detail compliance incidents over the previous year in which agencies violated the rules for the program in important ways, even if inadvertently.
But it usually takes months for the rulings to be declassified and released, meaning that even if lawmakers choose to read the ruling, the public is unlikely to see what the court said about compliance incidents in 2025 before Congress votes.
A declassified version of the court’s ruling from March 2025, which was made public last September, revealed that a system used by F.B.I. analysts had an “advanced filtering function” that let them view, via a drop-down menu, messages of specific people who had been in contact with foreign targets the analysts had queried.
In 2024, the Justice Department became aware of how that function sometimes let analysts see collected messages of Americans who had been in contact with the foreign target. But those views were not being logged or counted as queries for an American’s information, so the reported numbers were off, and there was no way to go back and audit them for compliance with heightened limits. The F.B.I. deactivated the function.
In referring to the newly identified problem in this year’s ruling, the talking points described it only as “discrete technical capabilities, which are unique across the different agencies that access 702 data.” But the person familiar with the matter said that it was similar to the problem with the F.B.I. filtering tool, and that the newly disclosed issue applied across the intelligence community, including another tool being used by the bureau.
Charlie Savage writes about national security and legal policy for The Times.
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