Privacy and surveillance experts and United States lawmakers from both parties on Thursday warned that the Federal Bureau of Investigation’s continued access to Americans’ communications without a warrant under a controversial surveillance law risks turning a foreign intelligence tool into a standing engine for domestic spying.
Testifying before the House Judiciary Committee, four witnesses—a former US attorney, a conservative litigator, a civil liberties advocate, and a tech-policy analyst—urged Congress to impose a probable-cause warrant requirement on searches of a vast government database built under Section 702 of the Foreign Intelligence Surveillance Act (FISA); or allow the authority to expire when it comes up again for reauthorization this spring.
“Section 702 was sold to Congress as a vital tool to target foreign adversaries,” said Brett Tolman, a former US attorney in Utah and ex-Senate Judiciary Committee counsel. “We were given high-stakes assurances … that it would not be used improperly against honest Americans. I was in the room when they represented it would not be abused. That was a lie.”
“For decades and with increasing regularity,” he added, “it has been the government’s permission slip for warrantless spying on Americans.”
The stakes are especially high now under the Trump administration because both the legal backdrop and political landscape have shifted against unchecked surveillance at the same time that executive power is being exercised more aggressively. A federal court has now held that warrantless “backdoor searches” of Americans’ Section 702 data are Fourth Amendment searches and were unconstitutional in at least one FBI case. At the same time, President Donald Trump has installed loyalists such as Attorney General Pam Bondi, FBI director Kash Patel and Director of National Intelligence Tulsi Gabbard, all of whom publicly back 702 while facing deep skepticism from Democrats and some Republicans over the politicization of law enforcement.
Members at Thursday’s hearing accused the White House of already centralizing vast troves of federal data and issuing directives that target groups based on political beliefs, raising fears that a tool built to monitor foreigners could be repurposed against domestic opponents if Congress does not lock in judicial checks before 702’s April 20, 2026 sunset.
The unusual coalition arrayed against the 702 program cut across party and ideological lines. Liberal Democrats deeply distrustful of the administration’s domestic intelligence activities found themselves echoing complaints long voiced by conservative critics of “the deep state.”
“We have taken on our own parties, in power and out of power, because the Constitution doesn’t change depending on who is in the White House,” said Representative Pramila Jayapal, Democrat of Washington, who had likewise urged limits on the FBI when Democrats governed.
Section 702, first enacted in 2008 and repeatedly renewed, allows the government to compel US technology and communications companies to turn over the communications of non-US persons believed to be overseas for foreign intelligence purposes, without an individualized court order. The program is often described inside the intelligence community as a crown jewel, and it is one of the rare surveillance authorities that Congress itself has repeatedly reauthorized, giving it a powerful claim to democratic legitimacy.
That approval is only necessary because the collection inevitably sweeps in emails, texts, and calls involving people inside the United States who communicate with foreigners overseas; people who needn’t be tied to terrorism or crime to be considered a viable target.
The communications are stored in large government databases maintained by the National Security Agency and shared with the FBI, CIA, and the National Counterterrorism Center, the federal hub for terrorism-related intelligence. Agents can “query” those databases using Americans’ names, phone numbers, or email addresses to see if any previously collected communications match—all without going to a judge—in a maneuver civil liberties experts call a “backdoor search.”
Lawmakers and witnesses said Thursday’s hearing was an early marker in what will likely be a bruising reauthorization fight over the coming months.
Liza Goitein, codirector of the Liberty and National Security Program at the Brennan Center for Justice, told lawmakers that Section 702 has drifted far from the foreign terrorism program Congress thought it was authorizing nearly two decades ago. “Congress conceived and enacted Section 702 as a foreign terrorist surveillance program, but over the last 17 years it’s become something very different,” she testified. “Today, Section 702 is a rich source of warrantless access to Americans’ communications.”
By statute, the government must certify to a secret court that it is not using the 702 program as a workaround to target specific Americans. But once the data is in government hands, Goitein noted, “all of the agencies that receive Section 702 data routinely run warrantless electronic searches for the communications of a particular known Americans.”
“This is a bait and switch that drives a massive hole through the Fourth Amendment,” she said.
The FBI alone conducted more than 57,000 such searches in 2023, according to public transparency reports. Intelligence officials say that number dropped dramatically in the wake of recent reforms that were included in the last reauthorization bill. But witnesses and several members of the committee warned that the new figures are misleading because the FBI quietly changed what it counts as a “query.”
The reforms—requiring supervisory or attorney pre-approval, written justifications, and audit-ready logging—came into effect last year after passage of the Reforming Intelligence and Securing America Act (RISAA), which reauthorized the collection until April next year. While ostensibly aimed at addressing the pattern-istic Fourth Amendment violations since 702’s inception, the reforms stopped short of imposing a warrant requirement or strong, automatic external checks on FBI queries, in many ways allowing the bureau to continue to police itself.
“We have no idea how many queries the FBI conducted in 2024,” Goitein said on Thursday. “The number that appears in the annual statistical report is the number of known queries. The total remains unknown, as does the FBI’s compliance rate.”
Supporters of RISAA’s 2024 reforms, meanwhile, argue that Congress had already taken significant steps to rein in abuse and should not strip away what they called vital tools.
“There are two facts that should be evident from today’s hearing,” said Representative Laurel Lee, Republican of Florida, who helped write RISAA. “First, serious failures occurred under prior FISA and Section 702 authorities, particularly in the FBI’s queries of US-person data. Second, Congress acted, reforms were imposed, and those reforms are now demonstrably working.”
Lee cited a Justice Department inspector general review required by RISAA, which found a sharp drop in noncompliant queries and concluded that widespread improper searches “no longer appear to be occurring,” with remaining errors largely administrative or typographical. But the witnesses—and a bipartisan bloc on the committee—say the new safeguards were not enough, especially when the FBI can redefine basic terms like “query” without warning Congress.
Representative Andy Biggs, Republican of Arizona, pressed the witnesses on whether having an FBI supervisor sign off on access to sensitive data is even remotely comparable to an independent judge demanding probable cause before issuing a warrant.
“Not at all,” answered Gene Schaerr, a conservative constitutional litigator who represented former Trump campaign adviser Carter Page in a lawsuit over a botched FISA warrant. “The process the Constitution puts in place is that the Article III branch serves as an independent check on the executive branch in order to ensure that Americans’ privacy is protected.”
Goitein pointed out that the standards themselves are different. “Probable cause is a very different standard from ‘reasonably likely to produce foreign intelligence,’” she said, referring to the threshold for many internal approvals.
Tolman, drawing on his experience as a prosecutor, said he rarely had a supervisor push back on his requests to seek a warrant from a judge—and that giving FBI managers the last word instead of a court invites a different mentality. “In national security, there is the mentality that the Fourth Amendment does not apply,” he said. “Once you cross that line, you are no longer concerned about whether or not you’re following certain constitutional protections.”
Beyond the warrant requirement, witnesses and lawmakers zeroed in on the breadth of entities that can be forced to help the government collect communications, and the government’s growing practice of buying Americans’ data from commercial brokers. RISAA expanded the definition of “electronic communication service provider” to include any service provider with access to equipment that may be used to transmit or store communications.
Goitein told lawmakers the new language is so broad that “pretty much every American business and a lot of organizations provide some kind of service and they all have access to communications equipment—that’s a phone or a computer.”
“The commercial landlords of the buildings where tens of millions of Americans go to work every day can be forced to assist the government with surveillance,” she said. Unlike Verizon or Google, she noted, those entities often lack the ability to isolate individual messages, meaning they may have to give 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 a free-market think tank, the Consumer Choice Center, called the expansion “way too expansive” and said it has “scripted a whole host of businesses into this surveillance apparatus that had no intention of ever being in there.” He noted that the Information Technology Industry Council, a major tech trade association, took the unusual step of publicly urging Congress to narrow the definition.
The panel also aired what has become known as the “data broker loophole”—the ability of agencies to buy location, browsing, and other sensitive data about Americans from private companies rather than obtaining it with a warrant.
“It happens constantly,” Goitein said, listing the FBI, Drug Enforcement Administration, Secret Service, Homeland Security, Defense Department, and IRS among agencies that have purchased cell phone location data. She noted that the Supreme Court has held that historical cell-site location information is protected by the Fourth Amendment when demanded directly, but that agencies claim they can buy the same data from brokers without a warrant.
Tolman said secrecy around those contracts and purchases makes it difficult for Congress or the courts to enforce any limits.
“Without being able to shed light on what they’re doing and who they’re contracting with, it’s very difficult to stop its use,” he said, calling for third-party reviewers and tighter guardrails on data purchases.
Czerniawski added that such reforms “will not end surveillance, nor will they prevent legitimate national security operations,” arguing that “the country will not go dark.”
Schaerr said adding a warrant requirement to 702 and expanding the use of independent “amicus” lawyers in politically sensitive cases could have prevented some of the most notorious abuses, including the flawed warrants used to monitor Page.
In the end, the witnesses argued, the question is whether Section 702 will remain a foreign intelligence tool subject to the same constitutional constraints that apply elsewhere—or continue what Tolman called “a clear record of systemic failure, constitutional betrayal, and disregard for the rule of law.”
Jim Jordan, the committee’s Republican chairman, put it more simply:
“The tried and true method—going to a separate and equal branch of government, getting a probable-cause warrant—is the answer,” he said. “It doesn’t take a genius to figure this stuff out.”
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