The Case for Letting FISA’s Section 702 Expire

The countdown on a key U.S. surveillance capability has begun, with Section 702 of the Foreign Intelligence Surveillance Act (FISA) set to expire on April 20 absent its reauthorization by Congress. We should let it. Originally sold to the public as a counterterrorism-related surveillance response to the 9/11 attacks, the Section 702 program has morphed into far more than a “foreign intelligence information” collection tool. And recent efforts to reform, rather than repeal, the legislation fall short.

Section 702 authorizes the National Security Agency (NSA) to collect communications of non‑U.S. persons located abroad without a warrant. However, because of the structure of the global telecommunications system, the text messages, phone calls, and other digital data of people in the United States are invariably captured during FISA Section 702 collection activities. That information is stored in databases that are queried by the NSA, the Federal Bureau of Investigation, and even some Central Intelligence Agency personnel—all without having to obtain a warrant from a federal judge before conducting such searches. The prior abuses of such Section 702 collection and warrantless database querying are well documented.

This month, a bipartisan group of senators introduced a 116-page bill—the Security and Freedom Enhancement (SAFE) Act—ostensibly designed to bring an end to nearly 20 years of constitutional rights violations under Section 702. But the legislation includes several fatal flaws, potentially allowing for the continuation of warrantless searches and unrestricted data collection targeting Americans.

A recent court case illustrates why sweeping changes to Section 702 are both long overdue and desperately needed. One day after Donald Trump was sworn in for his second presidential term, Judge LaShann DeArcy Hall of the Eastern District of New York unsealed her previously classified ruling in U.S. v. Hasbajrami. In short, the case involved an episode in which FBI personnel conducted warrantless searches of the FISA Section 702 database for information on the defendant, a legal permanent resident from Albania charged with “material support to a terrorist organization,” and failed to disclose that fact at trial. While the revelation did not result in a mistrial, upon remand from the 2^nd Circuit Court of Appeals, Judge Hall examined the question of whether such a warrantless search was constitutional.

Her excoriation of the Biden Justice Department on the matter was blistering, arguing that “the Government suggests that simply because their queries pertained to foreign intelligence, without more, they fall within the exception [for requiring a warrant] … that is just untrue.” She concluded that a warrant was indeed required to access stored FISA Section 702 data.

To lawmakers’ credit, the new FISA Section 702 reform bill put forth by Sens. Mike Lee of Utah, Dick Durbin of Illinois, Kevin Cramer of North Dakota, and Mazie Hirono of Hawaii includes such a warrant requirement. Unfortunately, it also includes multiple “exceptions” that make the requirement less stringent than it should be.

The plain fact of the matter is that no person on U.S. soil should be the subject of intelligence collection under FISA in the first place unless they are in direct contact with a known or suspected terrorist or foreign spy. And if they are, that itself is probable cause to get a warrant for investigative purposes under the Fourth Amendment. Yet it’s known that information on millions of innocent Americans is swept up and stored for years via Section 702’s digital dragnet. The bill, as drafted, does nothing to end that practice.

However, the bill’s authors do attempt to address another major, unregulated surveillance practice plaguing American citizens: the easy availability of personal information via tech companies and data brokers. It’s not the first effort to prevent this practice. In 2024, the House passed on a bipartisan basis the Fourth Amendment Is Not For Sale Act, which would have required federal law enforcement to get a warrant from a judge in order to obtain personal information held by commercial firms such as Google or the myriad data brokers operating in the United States. Unfortunately, the Senate didn’t take up the legislation last session, and the commercial data acquisition prohibitions in the SAFE Act also include major carve-outs that may be exploitable by federal law enforcement and intelligence agencies.

The latest reform bill also falls short because of its reliance on federal enforcement. Take its imposition of criminal penalties for false or misleading FISA Court submissions, for example. This provision, like all others in the bill, presumes the Justice Department is run by an attorney general who will seek to prosecute such breaches even if they are committed by political appointees of the administration in which the attorney general serves. That was a questionable presumption in the pre-Trump era. In the world of Trump 2.0, such expectations ignore not only the current administration’s abysmal legal compliance track record but the terrible precedents that misconduct has set for those who follow Trump into office.

It’s also telling that the two leading surveillance reform voices in the Senate—Ron Wyden of Oregon and Rand Paul of Kentucky—have not thus far co-sponsored this legislation. Surveillance reform advocates should view their silence as a big red flag.

Finally, even if the SAFE Act were to pass the Senate and House, it faces an almost certain veto from Trump. Key presidential aide Stephen Miller is pushing hard for the reauthorization of FISA as is through at least 2027. Miller has the ear and trust of the president. It’s not hard to see how this fight will play out absent a change in the political dynamics.

Surveillance reformers in the Senate can change those dynamics by simply letting FISA Section 702 expire on April 20. If FISA were to revert to its pre‑9/​11 legal form, the Justice Department and U.S. intelligence community could still collect foreign intelligence information on foreign entities, including terrorist organizations. The attorney general would still be authorized to conduct warrantless surveillance on an emergency basis but would be required to report such surveillance to the FISA Court (which reviews FISA surveillance applications) within 24 hours.

In other words, if Section 702 expires for a time, it wouldn’t be the end of FISA. But it would force a badly needed reckoning with its abuses—and provide Congress with time to agree on a bill that would preclude such abuses in the future. If the executive branch resists such reforms, that resistance itself would be telling: Maybe the current system depends less on legitimate intelligence needs than on the continued availability of sweeping surveillance powers.