Congress may close FISA Section 702’s surveillance loopholes

A warrantless wiretapping authority that has facilitated surveillance for decades is up for renewal in Congress. Section 702 of the Foreign Intelligence Surveillance Act (FISA), last reauthorized in 2024, is set to expire on April 20th. A bipartisan coalition of progressive Democrats and members of the hard-right Freedom Caucus say it’s long overdue for reform. But they’re up against powerful figures in both parties who want to deliver a “clean” reauthorization, even as critics warn the rule is allowing President Donald Trump’s administration to spy on anyone — even Americans.

Section 702, first enacted in 2008, formally allows for the surveillance of foreign “targets.” It lets federal intelligence agencies like the FBI, NSA, CIA, and the National Counterterrorism Center access the communications of any “non-US persons” not in the US, meaning noncitizens residing outside the country. If the government wants an American’s communications, however, all it has to do is determine they’re talking to a non-US person. Critics call this the “backdoor search loophole.” Section 702’s last reauthorization was a contentious, drawn-out process that involved several failed votes. The authority was renewed just after midnight on April 20th of that year, meaning that it technically lapsed, though just for a few minutes.

This time around, House Speaker Mike Johnson (R-LA) has chosen to delay the vote in what critics say is an attempt to suppress the bipartisan effort to reform FISA.

Section 702 has been contentious since whistleblower Edward Snowden revealed details about its use in 2013, but progressives are especially wary in light of the Trump administration’s well-documented abuses of US spying capabilities. Between 2018 and 2020, the FBI used Section 702 to run searches on a member of Congress, campaign donors, more than 130 Black Lives Matter protesters, and “multiple current and former United States Government officials, journalists, and political commentators,” according to declassified documents. Privacy advocates are concerned that the Trump administration will continue to use Section 702’s authority to spy on American citizens. Two people familiar with the White House’s ongoing conversations over FISA reauthorization told Politico that Stephen Miller, the influential White House adviser and architect of the Trump administration’s immigration crackdown, sees Section 702 as critical to homeland security efforts.

Trump has also claimed FISA is essential for the ongoing war in Iran. FISA “is extremely important to our Military,” Trump said on Truth Social on March 25th. “I have spoken to many Generals about this, and they consider it vital. Not one said, even tacitly, that they can do without it — especially right now with our brilliant Military Operation in Iran.” The White House has reportedly called in members of the Freedom Caucus, as well as other skeptical Republicans, for briefings on the bill.

But libertarian-leaning Republicans, especially those in the Freedom Caucus, have concerns about Fourth Amendment violations under Section 702. On the FISA front, these Republicans’ loyalty to Trump is outweighed by their commitment to civil liberties. Right now, it doesn’t seem like Johnson, who is pushing for a clean extension, has enough Republican votes to get a FISA reauthorization without Democratic support. Some Democrats have long-standing objections to the surveillance authority, while others are wary of extending Trump and Miller’s access to Americans’ communications.

Among the latter is Rep. Jamie Raskin (D-MD), who voted to reauthorize Section 702 in 2024 and now opposes extending the program as is. “The safeguards put in place in 2024 have been badly eroded by the Trump Administration,” Raskin wrote in a letter to his colleagues. “The ‘clean’ extension favored by President Trump and Stephen Miller leaves the Trump Administration in charge of policing its own abuses of this authority — and what could go wrong with that?”

With Trump at the helm, some Republicans who opposed the 2024 reauthorization may support a clean extension. But the White House needs Democrats to come on board.

“Every path for Speaker Johnson right now depends on Jim Himes delivering Democrats, which means getting Democrats to back, literally, Stephen Miller’s personal surveillance agenda,” Sean Vitka, the executive director of Demand Progress, told The Verge. Himes, a Connecticut Democrat who serves as the ranking member of the House Intelligence Committee, is urging Democrats to support a clean extension.

In March, Demand Progress and more than 90 civil rights and progressive organizations sent a letter to Democratic leaders urging them to reform Section 702.

In 2024, reformers secured limited changes. That reauthorization implemented several new restrictions on the FBI’s ability to query US persons, and required the agency to provide detailed annual reports to Congress regarding noncompliant queries.

But there’s still bipartisan appetite for reform. Reps. Warren Davidson (R-OH) and Zoe Lofgren (D-CA) and Sens. Ron Wyden (D-OR) and Mike Lee (R-UT) introduced the Government Surveillance Reform Act, which includes provisions reining in the federal government’s spying capabilities under Section 702, in March. The bill would require the federal government to obtain a warrant to access any Americans’ communications gathered under Section 702. It would also prohibit the federal government from buying Americans’ data from private brokers without a warrant, and implement warrant requirements for surveilling Americans’ location, web browsing data, search and chatbot records, and car onboard data.

“The FISA reform coalition is concerned about Constitutional principles not political parties,” Davidson told The Verge. “Constitutional conservatives and progressive liberals don’t agree on much, but we agree that the government shouldn’t be able to intentionally search Americans’ communications or track their movements for domestic law enforcement purposes without a warrant.”

It has strong bipartisan support: Sens. Elizabeth Warren (D-MA) and Cynthia Lummis (R-WY) and Reps. Sara Jacobs (D-CA) and Pramila Jayapal (D-WA) have signed on as cosponsors. And the House nearly passed a warrant requirement during the last reauthorization fight: The amendment failed on a 212-212 vote.

“Passing FISA 702 without strong new guardrails, while doing nothing to stop the government from buying Americans’ location data and feeding it into AI systems to conduct unprecedented mass surveillance, would be shocking negligence,” Wyden told The Verge. “Our approach shows the government doesn’t need to violate the rights of Americans to target foreign threats.”

Johnson has called the warrant requirement “unworkable” and said that previous reforms implemented in 2024 are sufficient. Privacy advocates disagree. The Brennan Center for Justice has called the 2024 changes “unambitious” and pointed out that even these modest changes were flouted by the FBI. The libertarian Cato Institute has similarly claimed that the 2024 reforms “fall short” because they rely on federal enforcement and aren’t subject to independent oversight.

Jake Laperruque, the director of the Security and Surveillance Project at the Center for Democracy & Technology, said the changes added to Section 702 didn’t meaningfully affect oversight, and haven’t stopped backdoor searches of Americans.

“All of the oversight systems — both the ones that were enacted in 2024 and the ones that previously existed — are dependent on good faith by the executive and rigorous oversight within the executive,” Laperruque told The Verge. “The entire oversight structure, from the privacy and civil liberties board, to independent inspectors general, to meaningfully independent and rigorous auditing within the FBI have all been completely shut down or made to exist within the prerogative of the White House. If something goes wrong in the future, or if things start to get abused in the future, we don’t have the tools to be made aware of it, let alone to stop it.”

Still, some Democrats are pushing for a clean extension. In a March letter to his colleagues, Himes said he understood why Democrats may be wary of granting Trump powerful surveillance capabilities but encouraged them to support a clean renewal anyway. Himes has said letting Section 702 lapse “would put the American people at severe risk,” adding that the authority is used to “thwart terrorist attacks, to stop fentanyl traffickers and to identify foreign spies.”

“If I saw any evidence that Trump administration officials were directing the intelligence community to use Section 702 for illegal or improper purposes, such as to persecute, surveil, or harass Americans, I would urge a ‘no’ vote on reauthorization, even though I recognize the program’s unparalleled national security value,” he wrote. “I have not seen evidence of misuse, despite being on the lookout for any hint of it.”

Himes has managed to sway some lawmakers. Rep. Gregory Meeks (D-NY), the ranking member of the House Foreign Affairs Committee, told The Hill he supported a clean reauthorization after speaking with Himes. “I know the improvements that have been made,” Meeks said — both Johnson and Himes have touted the “substantive” reforms implemented under the 2024 legislation. “I think it’s in our best interest for national security purposes,” Meeks told The Hill. Meeks declined The Verge’s request for comment.

Laperruque said Himes’ assertion that the Trump administration has never misused its surveillance authority under 702 is “demonstrably untrue.”

“I think some members are treating the intelligence community as their constituents,” Laperruque said. “The intelligence community wants the ability to exploit this loophole, they want the ability to buy data, they don’t want to go to court when they do queries.”

After being confronted by protesters at a town hall last week, Himes said the National Security Agency (NSA) and other foreign intelligence agencies doesn’t buy Americans’ commercial data. But last year, Wyden released classified documents revealing that the NSA does in fact buy Americans’ internet records. And as Kash Patel admitted in a hearing before the Senate Intelligence Committee, so does the FBI.

“It felt as if he was coming out there just so he could come back inside and tell everybody he was out there in the first place,” Evan Lucas, the chair of the Connecticut High School Democrats and co-organizer of the protest outside Himes’ town hall, told The Verge. “He has a tendency to lie, and I’m not sure if it’s because he’s unaware or if he believes this is truly the right thing for his constituents.”

Lucas said Himes hosted a follow-up town hall on Zoom. Lucas, a high school senior, said he is especially concerned about the federal government using artificial intelligence to “organize and collect and string together the information of American citizens.”

Privacy advocates are concerned that the Trump administration will continue to use FISA to spy on American citizens. “Why the fuck is Jim Himes getting behind Stephen Miller’s warrantless surveillance agenda?” Vitka said. “This is a very bad person who is very dangerous who is doing very real harm, not just generally or esoterically or in concept, but very specifically — and undoubtedly to Jim Himes’ constituents.”

Himes did not respond to The Verge’s request for comment.

When Section 702 was reauthorized with modest reforms in 2024, Chuck Schumer, at the time the Senate majority leader, touted the fact that “bipartisanship has prevailed,” with the two parties coming together “in the nick of time.” Congress is once again working within a narrow window. Section 702 will lapse if it isn’t renewed by April 20th, and no bill has even reached the Rules Committee. Congress is currently in recess, but legislators need to act soon to renew — or reform — FISA.

Section 702’s proponents have argued that bipartisan support and a two-year expiration date are enough to justify reauthorizing it without a debate. “There has been huge improvement based on the reforms we have done over the last decade, and this is a temporary extension, a short-term extension at the time we have this military operation going on in Iran,” Rep. Jim Jordan (R-OH), who previously supported a warrant requirement and closing the data broker loophole, told reporters in March.

But there’s always a boogeyman that justifies mass surveillance: During the last reauthorization fight it was the Chinese Communist Party and the threat of Russian space nukes. This time, it’s Iran and homeland security.

“The fact that there has not been progress at this point does not mean that there isn’t time to do it correctly,” India McKinney, the director of federal affairs at the Electronic Frontier Foundation, told The Verge. “I don’t think it’s a good precedent to reward people not coming to the table and not doing the work by giving them exactly what they want, which is a clean extension. This is hard, I’ll grant that. But we can do hard things. Congress is supposed to do hard things.”