​Lawmakers should consider that one of the worst aspects of modern surveillance is not just its sweeping intelligence collection, or its avoidance of Fourth Amendment probable cause warrants, but also the insidious nature of its secrecy. Every year tens of thousands of Americans have their communications records scrutinized by the government, without ever learning that their private records have been searched.
 
The bipartisan NDO Fairness Act – which passed the House unanimously in 2023 – offers a practical and overdue reform. The legislation would place meaningful limits on the government’s use of non-disclosure orders (NDOs), the gag orders often served alongside warrants compelling technology companies and cloud providers to secretly hand over customer data. These orders can prevent Americans from knowing that the government has accessed their emails, files, messages, or other digital records.
 
Former House Judiciary Committee Chairman Bob Goodlatte, now PPSA’s Senior Policy Advisor, and Richard Salgado, who teaches surveillance law at Stanford and Harvard Law Schools, write in The Washington Post:
 
“A physical search is cumbersome and expensive; it requires logistics, timing and staffing. And if a homeowner challenges it, the investigation could slow down.”
 
That is just as the Founders wanted it to be. By constitutional design, searches should not be easy. But James Madison could not have imagined the Department of Justice’s Legal Process Generator, which churns out demands and boilerplate NDOs.
 
“Once a warrant is approved, the government sends it to the service provider with the gag order and waits for the zip file to arrive.”
 
Presto, change-o, you’ve been searched. And that search will remain secret, likely forever.
 
As Goodlatte and Salgado explain, notice is essential to preserving Americans’ rights. When the government secretly searches records stored with third parties and then bars providers from informing customers, citizens are deprived of any realistic opportunity to challenge improper surveillance. In an age when Americans store much of their lives in the cloud, secrecy orders increasingly wreck the constitutional balance between citizens and the state.
 
As Congress weighs whether to renew the FISA Section 702 authority, lawmakers should seize the opportunity to enact reforms that reinforce constitutional accountability rather than weaken it. The NDO Fairness Act represents exactly the kind of bipartisan, common-sense safeguard that should accompany any extension of surveillance powers.
 
Americans deserve both security and transparency. Congress should deliver both.
 
Here’s The Washington Post piece in full (paywalled).

​The recent drama in the House and Senate on surveillance reform had more reversals than an episode of the original Game of Thrones series, lots of verbal swordplay with both sides switching places on the Iron Throne.
 
The Legislative Twists and Turns

The House leadership succeeded on Wednesday evening in passing a three-year extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA). This would have amounted to a three-year vacation from oversight for an authority that was enacted by Congress to enable surveillance of foreign threats on foreign soil, but that has also been used by the FBI for warrantless domestic spying on the American people.
 
Yet, a number of House reformers bought into this offer by House leadership, which cleverly attached a promised ban on the creation of a “central bank digital currency.” We applaud this idea but deplore the cynicism behind this tactic. It is true that such a digital currency would end any semblance of financial privacy, giving the government the means to track every transaction by every American in real time.
 
We knew, however, that the anti-digital currency proposal was already dead on arrival in the Senate. It was a shiny but worthless object.
 
Sure enough, Senate Majority Leader John Thune declared the digital currency provision a “poison pill” for Section 702 reauthorization. On Thursday the Senate quickly passed a short-term “clean” reauthorization of Section 702 – for 45 days – which then went back to the House. We are grateful that many of PPSA’s reform allies took to the House floor to complain that Congress is still considering a clean reauthorization bill that offers no substantive reforms at all.
 
What is the state of play now? The issue of whether or not to attach reforms to Section 702 remains unresolved. Thus the Iron Throne remains empty and open to capture by either side. The battle over surveillance reform resumes in when Congress returns in a week and is likely to continue through mid-June.
 
What Was So Bad About the House Leadership’s Proposal

A three-year gap before the next reauthorization of Section 702 would be an excessive delay before the next opportunity for Congress to debate and exercise meaningful oversight over the intelligence community.
 
The regular reauthorization debate – the last one was a mere 18 months ago – is the only opening in the legislative calendar for reformers to press for a warrant requirement for government inspection of Americans’ communications under programs authorized by Section 702.
 
It is the only vehicle by which reformers can press to end the warrantless purchase of Americans’ personal data by federal agencies from shady, third-party data brokers.
 
And it is the only leverage Congress has to narrow a 2024 provision that allows the NSA to secretly compel countless small businesses and houses of worship to spy on customers and congregants.
 
Just as bad, a three-year delay before the next reauthorization debate would leave the intelligence community free to evade scrutiny while it turbocharges its practices with the astonishing privacy-destroying power of AI. Imagine what AI surveillance might look like between now and 2029.
 
We told all of this to Members of Congress, and many responded with alarm. We were encouraged that the three-year extension passed the House by only a slim margin. The vast majority of Democrats opposed the reauthorization, and 22 Republicans stood up to Speaker Johnson’s absurd three-year delay before the next surveillance debate as well.
 
The Struggle Ahead
​
Between now and mid-June, we will continue to work with other civil liberties organizations to educate Members of Congress about surveillance abuse.
 
More and more Members of Congress seem to be getting the message. We exposed the weakness of many so-called reform proposals and the realities of surveillance abuse on our website. This last week, for the first time, the number of visitors to our website topped more than 1 million views, including 402,000 first-time visitors.
 
PPSA peppered Congress with email blitzes detailing the deficiencies of leadership proposals that were long on cosmetics but short on substance. We were delighted to see that the open rate of PPSA’s Key Vote Alerts to senators, representatives, and staff reached 42 percent, far above the industry average of around 15 percent.
 
Most important of all, PPSA worked to keep you up to speed, with our website, social media outreach, virtual briefings, and our newsletter on the intelligence community’s latest shenanigans.
 
Our voice on Capitol Hill would not be heard without you. You answered our call to blitz congressional offices with your emails and calls – and the result can be seen in the fact that surveillance reform lives to fight another day.
 
So thank you for your support of PPSA. And above all, thank you for showing up when we issued calls to action by contacting your representatives in Congress. With your efforts, surveillance reform is still in play. With your continued support, we will stand our ground for Americans’ privacy.
 
Fingers crossed.

Short answer: Yes. Longer answer: Hell, yes.

Carter Page, a former foreign policy advisor to the 2016 Trump presidential campaign, will be paid $1.25 million to settle claims for surveillance that resulted from an FBI that knowingly made untruthful claims against him before the secret Foreign Intelligence Surveillance Court (FISA) Court.

At a time when history is measured in news cycles, this may seem like ancient history to many in Washington. And yes, the Page debacle concerned Title I of FISA, a different surveillance authority from the FISA Section 702 authority, whose reauthorization is now the subject of intense debate in Congress. But the Carter Page ordeal is well worth revisiting. It does, in fact, have a lot to say about the current Section 702 controversy.

The Essentials of the Carter Page Debacle

The FBI obtained four improperly obtained surveillance orders from the secret FISA Court to surveil Page. Under the law’s “two hop” rule, these orders not only allowed the FBI to spy on Page; they also allowed the FBI to spy on anyone Page communicated with (such as the Trump campaign manager) and anyone that person communicated with (the candidate himself).

One doesn’t have to be an admirer of Donald Trump to find it beyond dangerous for the FBI to investigate a presidential campaign, and ultimately the candidate himself, in the middle of a national election. This is especially true when we consider that the whole investigation was predicated on lies the FBI told the court, accompanied by a forgery in the form of a document altered by an FBI attorney.

Does that sound overwrought? Consider: The four secret surveillance orders were the direct result of the Department of Justice and the FBI committing acts of omission and commission in their representations to the FISA judge in 2016 and 2017. Department of Justice Inspector General Michael Horowitz – a Democrat, by the way – conducted an exhaustive investigation that identified 17 “significant inaccuracies and omissions in each of the four applications.”

The FBI, in its surveillance application for Page, did not inform the court that the basis of its suspicions – an intelligence report produced by a dodgy ex-MI6 officer, Christopher Steele – was something that the Bureau itself had concluded was completely unreliable. Indeed, the “Steele dossier’s” most salacious report, that Russian intelligence had a “pee tape” of Trump cavorting with micturating prostitutes in a Moscow hotel room, was later determined by Horowitz’s investigation to have started as a bar joke.

Not only did the FBI know that the basis for probable cause presented to the court was sketchy, but it also falsified evidence. Former FBI lawyer Kevin Clinesmith would later plead guilty to altering an email from the CIA that he had submitted as evidence to the court. What had been altered? The court asked if Carter Page had a connection to the CIA. He had, in fact, been a secret operational contact for the CIA, which had given Page its highest rating for dependability. The FBI attorney altered that CIA document, changing it from affirming Page’s relationship with that agency to denying it.

Some Obvious Conclusions

We admit to feeling a little personal about this. PPSA attorneys have represented Page in his quest for justice. We can attest that Page – who was subjected to repeated FBI interrogations and a day-long examination before a grand jury – spent months in a lonely, personal hell. Had Page made the slightest mistake in his recollections, he could have been sentenced to years in federal prison.

He deserves every penny of this settlement.

But the takeaway for the public and every Member of Congress – Democrats as well as Republicans – should be what this story tells us about Section 702. It has been revealed that under Section 702, the FBI secretly surveilled U.S. Senators and U.S. Representatives, a state judge, political and religious organizations, and journalists.

If the FBI is willing to be this disingenuous before a federal judge, just imagine what it might be willing to do with the communications of everyday Americans obtained by Section 702 programs that are usually warrantless and lack direct judicial oversight of individual queries.

Far from being ancient history, the Carter Page ordeal is a constitutional cautionary tale – one Congress ignores at the peril of every American’s Fourth Amendment rights.

In the seven years that PPSA has tracked developments in federal surveillance programs, we’ve witnessed a quantum leap in public understanding and concern about our government’s warrantless domestic spying.

When we began, we had to explain that Section 702 of the Foreign Intelligence Surveillance Act was a legal authority enacted by Congress to permit surveillance of foreign targets on foreign soil. We went on to explain that this foreign surveillance authority had been expanded by the intelligence community to make warrantless searches, called queries, of Americans’ personal communications that get sucked into the NSA’s global trawl of data.

We now find that most Americans we talk to have a good understanding of this. And they are not happy about it.

By 2023, four out of five Americans were insisting on strong surveillance reform. In the last reauthorization of Section 702 in 2024, awareness and alarm had grown so much that a warrant requirement for the authority failed in the House in a tie vote. Sixty percent of Republicans – a majority of the majority – voted for that warrant requirement.
​
This week, the House will likely vote on Section 702 reauthorization. The big decision will be whether House leadership will allow Members to vote on reform amendments, or whether they will try to ram through the basic authority ornamented with sham “reforms.”

As this happens, we are pleased to see so many Republicans and Democrats taking a stand against what is essentially a clean, or reform-free, reauthorization. Four out of five Americans are in favor of strong surveillance reform. That concern is now so deep that it has begun to percolate into state legislative campaigns.
​
Enter Vic Meyers, a Democratic candidate for Colorado House District 47.

Meyers read a Washington Post report in 2023 that the FBI misused Section 702 nearly 300,000 times in 2020 and 2021, including searches involving people arrested at protests. He is now proposing a law to forbid Colorado from collecting bulk data or sharing it with the federal government. Meyers says in a recent YouTube post:

“Think about how long it would take you, or you and 100 others, to conduct 300,000 searches of data collected on Americans, and remember that was just one agency in just over one year that we know about. That kind of data mining is only possible because of AI …”

“If you're thinking, well, hey, Vic, I don't talk to people overseas, think again.

“Customer service calls, scam emails, call centers. You don't control where your data goes. These are the kinds of things that could put your communications into a government database. I don't know about you, but I'm not willing to trade any of my liberty just for the simple possibility of more safety …”

We hear the same sentiments from innumerable Republicans as well.

Leaders in Congress ignore the explosive level of concern about warrantless federal surveillance at their peril. They would be well advised to include reasonable reforms that allow plenty of room for government to respond to emergencies, terrorism, cybersecurity, and other immediate threats.

If a clean reauthorization does occur this week, it would be a Pyrrhic victory for the intelligence community. A populist, bipartisan volcano is rumbling. It would be foolish to ignore it.

After a spectacular failure to push through an extension of FISA Section 702 in the middle of the night late last week, Speaker Johnson is now advancing a proposal that would do next to nothing to protect the millions of Americans whose emails, texts, and other communications have been caught up in the FISA database and read by the FBI and other government agencies, all without a warrant.

Speaker Johnson’s proposal forbids the “targeting” of U.S. persons for initial data collection under Section 702. But Section 702 already prohibits targeting U.S. persons. What it doesn’t prohibit is collecting and reading millions of Americans’ communications that get “incidentally” sucked into the NSA’s global trawl of data. In short, the proposal is a diversion that restates existing law as a reform, the policy equivalent of fool’s gold.

Notably, the proposal also does nothing to protect everyday Americans whose geolocation, online search history, and other sensitive personal information are routinely purchased by the FBI and other government agencies without a warrant. It also leaves intact an absurdly broad definition of “electronic communications service provider” under Section 702 that allows the NSA to compel millions of entities – from commercial landlords to everyday businesses and even houses of worship – to assist in Section 702 surveillance. And it does nothing to strengthen amicus participation in the FISA Court to protect civil liberties.

Minor Tweaks Instead of Reforms     
         
The bill’s so-called “reforms” primarily consist of tweaks to existing intelligence agency procedures. Rather than installing constitutionally mandated standards and safeguards, such as warrants issued by a judge, the Speaker’s proposal makes modest changes to the internal procedures of executive branch agencies.

Three Years Before the Next Debate Is Too Long in the Age of AI

The proposal would delay the next reauthorization of Section 702 for three years. With the rapid evolution of AI and its ability to sort individuals’ data into personal dossiers, giving the government a blank check to spy on Americans for three more years is far too long. The regular reauthorization cycles of Section 702 are the only real remaining leverage Congress has for meaningful surveillance reform. One or two years would be an acceptable reauthorization length, but three is a bridge too far.

The House Has Alternatives

In 2024, 60 percent of Republican House Members voted in favor of a robust warrant requirement. Last week, a House majority opposed a “clean” reauthorization. This is in keeping with the vast majority of the American public that supports a warrant requirement. It is time for Members to demand an up-or-down vote on real reform amendments to Section 702. And it is time for Speaker Johnson to give it to them.

Contact Your Representative

Click here to tell your U.S. Representative in the House that any reauthorization of FISA Section 702 must include serious reforms to curb the government’s spying on innocent Americans.

At 2 a.m. on Friday, the House of Representatives did something rare in Washington. It said no.

A deeply flawed proposal to reauthorize Section 702 of the Foreign Intelligence Surveillance Act went down in flames – and deservedly so. That bill would have imposed a weak, cosmetic warrant standard that would have made privacy protections worse, not better. It would have also reauthorized this authority for another five years, denying Congress a vehicle for oversight and debate over evolving surveillance technologies and practices until 2031.

We’ve since heard the intelligence community and its champions spread the word to the media and on Capitol Hill that Friday’s failed reauthorization was caused by irresponsible “obstructionism” fomented by the extremes of both parties at the expense of national security.

That’s nonsense – hogwash, even.

On Friday, the House voted 228-197 to shelve Speaker Mike Johnson’s deeply flawed “clean” version of Section 702. Even that substantial bipartisan majority didn’t fully reflect the will of the more than three-fourths of Americans who support a warrant requirement before the government can collect and review Americans’ private communications.

Why shouldn’t a majority of the majority have the right to vote on reforms again?

After the Friday night version of Section 702 failed, both houses of Congress voted to extend that surveillance authority to the end of April. This gives Congress and the public time to fully grasp the ends and outs of this debate.

Here are three expert resources to do just that:

What Is Section 702 – What Does It Do and Why Is It So Important?

Liza Goitein of the Brennan Center for Justice has produced a clear, readable primer on Section 702. She sets out the purpose and structure of this surveillance authority. She gives solid answers about how the government uses Section 702 for backdoor searches, and how a warrant requirement for Americans’ data in Section 702 would contain reasonable exceptions that would continue to protect national security.

Why Congress Must Act

Two respected U.S. senators, conservative Mike Lee (R-UT) and liberal Democrat Dick Durbin (D-IL), took to the pages of The New York Times to lay out how much is at stake in the Section 702 debate. These senators note that FBI agents in recent years have searched for the communications of political protesters across the ideological spectrum, Members of Congress, a congressional chief of staff, a state court judge, multiple U.S. government officials, journalists and political commentators, and 19,000 donors to a political campaign.

How Does the Data Broker Loophole Violate Our Privacy?

Rep. Warren Davidson (R-OH) in The Hill highlights a parallel threat: federal agencies’ purchases of Americans’ most sensitive and personal information from third-party data brokers. Rep. Davidson writes:

“Data brokers compile detailed dossiers on millions of Americans, aggregating location histories, browsing activity, app usage, and financial transactions into comprehensive profiles of daily life. This data could be used to create a gun registry by tracking purchase information, or target parents attending school board meetings, or identify people engaged in other First Amendment-protected activities.”

Good Reform Proposals on the Table

There is no shortage of serious reform proposals. The Lee-Durbin Security And Freedom Enhancement Act is a compromise that would pair reauthorization with meaningful Fourth Amendment safeguards.

In the House, Rep. Davidson and Zoe Lofgren’s (D-CA) Government Surveillance Reform Act offers the most comprehensive reform of surveillance law in decades.

Other proposals include Rep. Andy Biggs’s legislation, the Protect Liberty and End Warrantless Surveillance Act.

All of these amendments would curtail the government’s ability to grasp and exploit our personal information at will.

Security and Liberty Are Not Opposites

No one disputes the importance of monitoring foreign threats. Section 702 will – and should be – reauthorized. But it must be reformed to prevent its use as a backdoor surveillance tool for a domestic spying operation.

If you agree, please register your opinion with House Speaker Mike Johnson.

Click here to tell House Speaker Johnson that we can have both national security and respect for the U.S. Constitution. Please drop any attempt at a clean reauthorization of FISA Section 702 that rejects reasonable domestic surveillance reforms.

​As the House debates the extent of domestic surveillance of the American people under Section 702 of the Foreign Intelligence Surveillance Act, our representatives should note a breaking story – that the FBI has investigated the Cato Institute and its employees for years.

Of course, no one is above the law and anyone who appears to have committed a crime can be investigated. But the Cato Institute? Really?

This libertarian think tank attracted luminaries like Nobel Prize-winning economists, including the late Milton Friedman and the late Friedrich Hayek. Its policy papers, podcasts, and videos stand out for their quality of writing and the depth of their research. In a city where many nonprofit public policy institutes are little more than dressed-up public relations shops, Cato fellows are notable for their intellectual integrity and fearless honesty.

In 2019, the FBI responded to a Freedom of Information Act (FOIA) request from Cato fellow Patrick Eddington by swearing that it had “no records” on the organization. On April 15, the FBI reversed course, admitting under pressure from federal Judge James Boasberg that it has investigated Cato employees and the Institute itself for years for potential crimes.

What could these crimes be? Improper footnoting? Misuse of p-values in statistical analysis?
Eddington writes:

“You will search the public record in vain to find any indictment, federal criminal charge, or prosecution of any current or former Cato Institute employee or any charge against the Institute itself for any violation of federal law … 

“These are two distinct but reinforcing problems: an active criminal investigation running in parallel with classified intelligence collection, both shielded from disclosure, both targeting a prominent First Amendment organization, with no public prosecutorial output to show for it.

“So we now have a publicly filed, sworn declaration confirming an active, years-long FBI criminal investigation potentially targeting Cato employees – with zero public record of any resulting indictment, charge, or prosecution spanning what appears to be a timeframe that runs at minimum from before the original 2019 FOIA request through the present. That’s a potentially very long-running investigation of an IRS-recognized, prominent public policy organization engaged in First Amendment-protected activity that, as far as public records reflect, has produced nothing in the way of charges.”

Eddington concludes: “This is precisely the fact pattern that has historically characterized politically motivated surveillance operations conducted under color of law.”

Many on the left also complain that the FBI has subjected their First Amendment organizations to undue scrutiny.
​
Something to think about before the House accepts a rule that would allow no reform amendments to the Section 702 surveillance authority.

Bloomberg’s Annie Bang is reporting on new research commissioned by Swiss-based privacy company Proton. Over the last decade, the government has shown an increasing appetite for user data from companies like Apple, Alphabet, and Meta, with the number of requests increasing 770 percent.

That’s a lot – and it’s a bipartisan habit. As Proton’s Edward Shone told Bloomberg, “This isn’t a blue or red thing – this isn’t a sort of Trump or Biden or Obama thing. It has gone up consistently.”

And that massive increase is just in “standard” requests that are routinely disclosed. The number of requests balloons even more – nearly doubles, in fact – when requests made under the Foreign Intelligence Surveillance Act (FISA) are factored in.

Most of those FISA requests are likely warrantless – obtained via “backdoor” authority granted by the addition of Section 702 in 2008. Instead of being approved by judges, they are batched together and rubber-stamped – meaning no case is made, and there is no showing of probable cause. The Fourth Amendment is bypassed entirely.

Requests for Americans’ data, in just this one slice of the U.S. government’s digital surveillance, adds up to 6.7 million user accounts disclosed over an eleven-year period. It is little wonder, then, that Americans simply do not trust the government with their data.

As FISA and Section 702 come up for renewal this month, urge your representative in the House to support Rep. Andy Biggs’ Protect Liberty Act. Common-sense reforms like these would bring privacy guardrails to Section 702 that would prevent its continued (and obviously growing) abuse as a tool for agencies like the FBI to spy on American citizens without justification.

But the new research by Proton drives home the fact that this isn’t just an FBI problem – it’s a systemic, wide-ranging “government overreach” problem powered by technology. “In many ways, the U.S. government has effectively outsourced its surveillance to Big Tech companies and data brokers,” wrote Proton’s Richie Koch.

Big Tech offers, here and there, end-to-end encryption for users’ communications, from Signal to Apple’s iMessage. But encryption is far from a standard practice. As Elena Constantinescu wrote in describing Proton’s latest report, “Big Tech has repeatedly shown little interest in offering that kind of protection, let alone making it the default, across the services where people store their most sensitive information.” Case in point: Bloomberg noted that Meta just announced the removal of end-to-end encryption for Instagram chats.

Constantinescu is right that privacy begins with tech companies’ designs for their communication services. She writes: “Privacy is a matter of architecture, not just policy.”
​
As the government demands more data, strong and ubiquitous encryption would create less data for government to request or access without a warrant. It is time for Silicon Valley to draw a new set of privacy-forward blueprints that start with a Fourth Amendment foundation.

Congress made a solemn promise on surveillance reform to the American people in public, only to break it in private. As a result, the “Make Everyone a Spy” provision allows the government to conscript office-space providers – including those who rent space to media organizations, law firms, and political campaigns – into enabling warrantless surveillance through their buildings’ internet networks. Even churches and other houses of worship can be targeted.
 
As the House debates the reauthorization of Section 702, PPSA and our followers call on House leadership to deliver on this very public promise to narrow the provisions of a loophole in the definition of government electronic communications service providers (ECSP) in Section 702 of the Foreign Intelligence Surveillance Act.
How We Got Here
 
When FISA Section 702 was reauthorized in 2024, it included a provision that was intended to allow the government to compel the cooperation of one particular type of company, believed to be providers of cloud computing, to respond to requests for data for national security purposes. The broad language of this provision, however, allows the National Security Agency to secretly demand access to communications equipment from almost every U.S. business or non-profit organization.
During the Senate debate on this intelligence legislation in 2024, key lawmakers admitted that their draft language was overly broad. They insisted there was no time to fix it, but assured their colleagues that after passage they would work to narrow the ECSP language, making a “technical fix” to ensure that only appropriate entities could be compelled to assist in surveillance. House Intelligence Committee leaders indicated openness to that correction, calling it “totally fine.” 
 
As the U.S. House of Representatives once again moves forward on the next reauthorization of Section 702, that promised fix has been ignored by both houses of Congress for two years.
 
Basic Liberties at Stake
The ability to surveil foreign threats is vital to protecting the homeland and the American people. But PPSA is firm in the conviction that we can have robust surveillance of terrorist and cybersecurity threats without allowing our government to regularly spy on the American people – especially with massive databases supercharged by AI.
For that reason, we ask House leadership to embrace several key reforms.
 
·      First, warrants must be required before Americans’ communications, swept up in NSA’s global trawl, can be accessed by the government.
 
·      Second, the secret FISA courts should be required to rely on qualified amici – civil liberties experts with high-level security clearances – to represent the larger constitutional concerns of the American people in sensitive cases.
 
·      Third, the House should close the “data broker loophole” that allows government agencies to sidestep the Fourth Amendment by buying Americans’ search histories, geolocation histories, and communications from shady, third-party data brokers.
 
·      One more obvious reform is the one already promised: The House must address the “Make Everyone a Spy” provision before reauthorizing Section 702.
 
It is unconscionable that the NSA can conscript vast swaths of American businesses and non-profit organizations that provide ordinary services, such as Wi-Fi, into a domestic spying operation on customers, tenants, and congregants.
 
This ability of the government to spy on media, law firms, political organizations, and religious groups trashes both the First and Fourth Amendments. This is more than a failure in legislative oversight. It is a breach of trust.
 
Just as bad, when combined with other unresolved problems, such as Section 702’s warrantless “backdoor searches,” and the government’s purchase of sensitive personal data by a dozen government agencies, Congress has set the stage for a genuine American surveillance state.
 
Fortunately, the House has no lack of solutions. Bipartisan proposals – from Rep. Andy Biggs’s Protect Liberty and End Warrantless Surveillance Act to the Government Surveillance Reform Act, sponsored by Rep. Warren Davidson and Rep. Zoe Lofgren – contain language that would narrow the ECSP definition.
 
Since Senate leaders did not deliver the ECSP fix earlier in their own chamber, the responsibility now falls squarely on the House. Leadership should not move forward with any intelligence package that ignores this commitment or relies on vague assurances that reforms will come “later,” behind closed doors.
 
Anything less would confirm the worst suspicions of the American people – that when it comes to surveillance, a promised reform is always just one vote away, one that never quite arrives.
 
Click here to tell House Speaker Mike Johnson to drop any attempt at a clean reauthorization of FISA Section 702 that rejects reasonable domestic surveillance reforms.

​“Well, we have to make changes now. Think about this, after January 6th, I was surveilled. All right. During Obama years, they released my tax returns. All right. When I ran a large hospital company, they targeted my company because I was against Hillarycare.

“So, if they can target a large company CEO and a U.S. senator, they can target [all] Americans. We have to have some common-sense changes. Nobody at the FBI has ever been held accountable for the over 200,000 Americans who have been surveilled. Nobody. So, maybe this administration is doing the right thing, but what about the next administration?
​
“So, we have to have some common-sense reforms. We're going to have a couple weeks to start having a real conversation about how we do that. And I'm very optimistic.”

​It was a lot like the Battle of the Alamo – except this time, the defenders won.
 
In the wee hours of Friday morning, a coalition of 20 Republicans and 208 Democrats stopped House leadership from ramming through a reauthorization of FISA Section 702 weighed down by a disingenuous “reform” proposal. That proposal would have expanded the American surveillance state while weakening Americans’ privacy.
 
Worse, it would have punted the next reauthorization five years into the future. A surveillance authority created to track foreign threats – but too often used to conduct warrantless searches of Americans – would not have faced meaningful congressional scrutiny again until 2031.
 
That matters because Section 702 reauthorization is Congress’s only real chance to confront:

• The backdoor inspection of Americans’ private communications without a warrant

 

• The purchase and warrantless use of Americans’ most sensitive digital data from shady third-party brokers

 

• The “make everyone a spy” provision, which allows the NSA to compel access to Americans’ communications from businesses, landlords, and even houses of worship that provide Wi-Fi for their customers, congregants, tenants, and patrons

 
At a time of breakneck technological change – supercharged by AI – a five-year vacation from oversight might as well be a century.
 
Throughout the night, PPSA stayed on offense, providing Members of Congress with clear, fact-driven analysis.

As we pointed out to House Members, the bill’s biggest weakness was its overreach. House leadership tried to sell “reform” while pushing a five-year extension – an overreach that backfired.
 
Members were especially troubled by a Trojan Horse provision dressed up as a “warrant” requirement. In reality, it offered no protection for the vast number of everyday law-abiding Americans whose communications are swept up incidentally in foreign intelligence collection and then searched and reviewed by government agencies without any kind of judicial warrant.
 
Under that language, the FBI could still conduct backdoor searches of Americans’ communications with no evidence of wrongdoing – let alone probable cause.
 
The amendment also ignored the domestic surveillance practices of the NSA, CIA, and National Counterterrorism Center – agencies that collectively conduct thousands of backdoor searches each year. The NSA, in particular, has a long track record of violating the rules governing those searches.
 
Then came the giveaway clause. Buried in the text was a provision stating that “nothing in this subsection shall be construed to limit the authority of the Government under any applicable law or the Constitution …”
 
That’s not reform. That’s a disclaimer.
 
In short, the proposed cure was worse than the disease – especially because it failed to require a warrant before querying Americans’ communications in the Section 702 database.
 
But this fight isn’t over. The House has only kicked the can a few days down the road. The next vote is expected very soon.
 
PPSA will continue to arm Members with the facts – exposing phony reforms and warning against the dangers of locking in five years of largely unchecked surveillance. We’ll also keep you informed as the intelligence community and its allies on Capitol Hill roll out the next round of curveball proposals.
 
The good news: a majority of the House is holding firm for real reform, including a warrant requirement that actually protects Americans.
 
With your support – especially your calls and emails to House Members – PPSA will keep fighting to protect your privacy.

​Did you see The Wall Street Journal editorial Monday morning entitled “Playing National Security Roulette”? The editors argue that anything less than a clean reauthorization of the FISA Section 702 surveillance authority will “put the lives of Americans at risk.”
 
The Journal editors acknowledge that this authority, enacted by Congress to surveil foreign threats abroad, was misused by FBI agents who ran searches on political protesters, political donors, and Members of Congress. “But the intelligence community has since instituted safeguards on how searches must be authorized,” the editors tell us.
 
Thus, according to The Journal, adding any amendments to Section 702 would be a reckless gamble with national security – and reforms are not needed anyway, because the Reforming Intelligence and Securing America Act (RISAA) fixed all the problematic parts of Section 702.
 
Wrong on both counts.
 
Reforms Would Not Compromise National Security
 
Reformers want to amend the law to make the program consistent with the Fourth Amendment by requiring probable cause warrants before inspecting Americans’ communications.
 
But the warrant requirement being proposed for surveillance of Americans contains very clear exceptions for “exigent circumstances,” such as terrorist threats, as well as exceptions for every single other type of search the administration has claimed is helpful in protecting national security, including defenses against cyberattacks. Not only would these reform proposals allow the FBI to proceed without obtaining a warrant in an emergency, but the Bureau would also have great latitude as to what constitutes an emergency.
 
In short, warrants would be required in cases where the government is conducting a fishing expedition with no nexus to national security – such as an agent searching for the communications of his Tinder date, or searching for the communications of thousands of donors to a congressional campaign – but would not be required in exigent cases with national security implications. 
 
The FBI Continues to Violate the Law
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A FISA Court opinion in March 2025 revealed that the FBI had been systematically violating statutory requirements. In August 2024, DOJ overseers learned that the FBI was operating a “filtering” tool that allowed it to query Section 702 data under the radar. These U.S. person “searches” or queries were not counted, tracked, or audited, nor were they approved by an attorney or supervisor, as required by law.
 
Thus, the actual number of U.S. person queries for 2024 remains unknown and outside of any audits.
 
A new FISA Court opinion found that the systemic violations continue. According to The New York Times and The Washington Post, the FISA Court issued a classified opinion that reportedly reveals that even though DOJ shut down the filtering tool the FBI used in 2024, the FBI has been using another, similar filtering tool to conduct queries without following the requirements of RISAA.
 
Thus, the systemic violations of RISAA are not fixed. They are ongoing.
 
In Summary:
 
The warrant requirement proposals contain sufficient exceptions to counter potential terrorists, cybersecurity attacks, and other threats to the American people. And contrary to The Journal’s assertion that the RISAA “reforms appear to be working,” they are clearly not.
 
One final note – while the reauthorization of the Section 702 statute has an April 20 deadline, FISA Court surveillance orders are in effect through next spring. The House has plenty of time to debate these reform measures. There is no need for the kind of panic The Journal – obviously influenced by intelligence community spin – is fomenting.

​At the eleventh hour – as the House prepares to vote on a “clean” reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), which would exclude any reform amendments – a revelation from a secret court has disclosed major compliance problems directly related to Americans’ constitutional rights.

FISA Section 702 is a legal authority that allows U.S. government agencies to surveil foreign targets on foreign soil, but has been used by the government to spy on Americans’ texts, phone calls, and emails. The FBI, CIA, NSA, and National Counterterrorism Center conduct thousands of these warrantless “backdoor” searches each year.

In August 2024, it was revealed that the FBI was using a querying tool that allowed it to access Americans’ communications without adhering to the procedures Congress had just passed in the Reforming Intelligence and Securing America Act (RISAA). These searches evaded RISAA procedures meant to prevent abuses, such as obtaining approval for backdoor searches from in-house lawyers or supervisors, and recording the reasons for the search for internal audits.
The Department of Justice claimed to have fixed these violations in early 2025 and to have discontinued the use of that querying tool.

Yet a few days ago, the secret Foreign Intelligence Surveillance Court (FISC) found that the violations are in fact ongoing. We cannot be sure of the exact details, since the court’s opinion is classified. The New York Times, however, reported that the use of data-filtering tools to perform queries or searches of Americans’ information is:
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• A problem “across the intelligence community”  

 

• Being conducted by the FBI through “another tool” with the same functionality as the discontinued querying tool.

This should be enough to settle the debate about stiff-arming consideration of more effective reforms. House Members must reject calls for a clean reauthorization and send a clear signal to the intelligence community that Congress will no longer tolerate its shell games.

Nor should House Members be panicked by the phony claim that failure to reauthorize Section 702 will result in America’s security apparatus going dark. While the statute expires on April 20, the FISC’s current surveillance orders remain in effect until spring 2027.

The reform amendments before the House would require warrants before the government can search the communications of Americans, as mandated by the Fourth Amendment. However, they all contain robust exceptions for emergencies, cybersecurity attacks, and metadata.
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The House should not let itself be stampeded into a rushed vote. We have the time to debate reasonable reforms that will protect Americans from terrorists, while also protecting our constitutional rights from government overreach.

​“Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?”

That was the question Sen. Ron Wyden (D-OR) put to then-Director of National Intelligence James Clapper in an open hearing in 2013.

“No sir,” Director Clapper responded, then qualified his statement by saying, “not wittingly.”
It has since been proven – and is a matter of government record – that the NSA’s global trawl of data has pulled in the communications of Americans by the millions over the last five years. Quite a record for a surveillance authority enacted by Congress to surveil foreign targets on foreign soil.

See for yourself the misuse of this authority revealed in a rare public scolding of the FBI by the secret FISA Court over “widespread violations” of Americans’ privacy with Section 702 data. Or look at the revelations issued by that court of specific instances of how the FBI misused warrantless Section 702 material against U.S. political figures. It is widely reported that the FBI has freely helped itself to Section 702 data, searching the data of more than 19,000 congressional donors, a state judge, and Members of Congress.

The Hunter Biden Laptop Deceit

In 2016, former Director Clapper was joined by former CIA Director John Brennan, former NSA General Counsel Glenn Gerstell, and former NSA Deputy Director Richard Ledgett, along with almost 50 other former senior intelligence officials in signing a letter released just before the 2020 election. They chimed in on a New York Post story about the contents of a laptop owned by Joe Biden’s son, Hunter.

This time, the Fibbing Four solemnly told the American people that the contents of the Hunter Biden laptop had “all the classic earmarks of a Russian intelligence operation.” The FBI later determined that the emails and contents of the laptop were “not tampered with or manipulated.” Even The New York Times was forced to report that the laptop and its contents were genuine.

The irony is that former intelligence officials, abusing their continued access to classified information to skew a national election, is about the most Russian thing they could do.

Misinformation About Reform Legislation

Now Director Clapper, and his Hunter Biden colleagues Brennan, Gerstell, and Ledgett, have fired off another letter. This one is directed at Congress telling Members not to allow any reform amendments to the Foreign Intelligence Surveillance Act authority, Section 702, because that would degrade the government’s ability to protect Americans.

“If Congress fails to authorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time,” they write, joined by enough of their colleagues to get the number of signatories up to around 50. “As Members of Congress know, we face sophisticated threats from China, Russia, Iran, and North Korea, including the real possibility of devastating cyber-attacks and state-sponsored terrorism directed at Americans.”

These are, of course, real and active threats. But the Fibbing Four gloss over the fact that all of the reform proposals being proposed in Congress contain exceptions for “exigent circumstances.” These exceptions would allow intelligence agencies to react to time-sensitive emergencies, such as the so-called “ticking time bomb” scenario. These reform proposals also contain exceptions for cybersecurity and warrantless searches of metadata, requiring court approval only to examine the content of Americans’ communications.

Fool Me Once…

The good news is that Congress is getting wise to such shenanigans just before every vote. Before the last Section 702 reauthorization two years ago, the champions of the intelligence community put out a cryptic story about “a serious national security threat” that turned out to be theoretical, not imminent, reports about “Russian space nukes.”

Our advice to Congress is to look at the plain language of the reform legislation that allows the intelligence community to continue to defend America – while upholding our constitutional rights as well.
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We can defend America and obey the Constitution at the same time. Don’t let anyone tell you otherwise.

Bob Goodlatte, our senior policy analyst, who also represented Virginia’s 6th District in Congress and chaired the House Judiciary Committee, published an op-ed in the Washington Times. 

The debate over the FISA Section 702 surveillance authority is often framed as a clash between national security and privacy. But that framing is flawed – and dangerously so.

What Congress now faces is not just a Fourth Amendment question. It is a test of whether warrantless surveillance powers could quietly erode gun rights.
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A “clean” reauthorization of Section 702 – one that excludes meaningful reforms – is an implicit threat to the Second Amendment.

​The American Prospect reports that statements made by Rep. Jim Himes (D-CT), Ranking Member of the House Permanent Select Committee on Intelligence, are raising the question of how well Members of Congress understand the surveillance authorities they oversee.

​“I am not aware of any NSA purchases of U.S. person data,” Rep. Himes is quoted as saying in a virtual town hall last week. “And because their targets, by law, are exclusively foreign, they … have no reason and no business buying American data.”

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​We agree with the last part of that statement. If only the first part were true.
 
In a letter sent in 2023 in response to a query from Sen. Ron Wyden (D-OR), then-NSA Director Gen. Paul Nakasone wrote: “NSA acquires various types of CAI (commercially available information) for foreign intelligence, cybersecurity, and other authorized mission purposes, to include enhancing its signals intelligence (SIGINT) and cybersecurity missions. This may include information associated with electronic devices being
used outside and, in certain cases, inside the United States.”
 
Charlie Savage of The New York Times summarized the letter’s content thusly, “The National Security Agency buys certain logs related to Americans’ domestic internet activities from commercial data brokers.” This characterization was under the headline, “N.S.A. Buys Americans’ Internet Data Without Warrants, Letter Says.”
 
Rep. Himes also said that AI “has absolutely nothing to do with 702. Nothing. Full stop.”
 
The American Prospect reports that the Department of Justice’s National Security Division (NSD) budget justification shows that NSD “worked closely” with the intelligence community “to discuss new AI tools that are involved in processing or analyzing FISA-acquired information.”
 
All of which suggests that before the House debates the reauthorization of FISA Section 702 – a program that authorizes foreign surveillance on foreign soil but has often been used to warrantlessly spy on Americans on U.S soil – a deeper discussion with civil liberties groups and a robust House debate are warranted.
 
In facing the looming Section 702 debate, Members of the House need to hear from all sides of the surveillance debate – not just the approved line from the executive branch intelligence agencies.

​As Congress prepares to debate the reauthorization of FISA Section 702, lawmakers should understand one simple fact: Americans do not trust the government with their data. A new poll shows that 74 percent of Americans are concerned about the privacy and security of their personal data in government hands.
 
The poll, released last week by the Center for Democracy & Technology (CDT), shows that 79 percent of respondents agreed that: “Congress should use its authority to hold the government accountable when it ignores privacy laws.”
 
“People want their privacy protected,” said CDT’s Elizabeth Laird, “and bipartisan majorities want their elected leaders to do something about it. Lawmakers who ignore privacy are significantly out of step with their constituents.”
 
The high level of public concern about the warrantless access by government agencies to Americans’ data – at the heart of the Section 702 debate – was consistent regardless of respondents’ political affiliation or age group. The survey also revealed specific concerns about how that data is used – and misused:
 
68 percent are concerned about personal data being shared with law enforcement across the federal, state, and local levels
 
67 percent are concerned about personal data being shared with the Department of Homeland Security
 
83 percent are concerned about a breach of a government database exposing their personal data
 
73 percent agree that, without privacy laws, government agencies would track and monitor anyone they choose
 
44 percent say they would forgo government benefits rather than risk misuse of their personal data
 
These numbers are a warning. Poll after poll has shown that Americans across the political spectrum are deeply uneasy about how the government collects, searches, and uses their data. That concern is especially acute when it comes to warrantless searches of Americans’ communications under Section 702 – so-called “backdoor searches” that bypass the Fourth Amendment.
 
Nor are these fears hypothetical. From millions of warrantless queries in recent years to the government’s routine purchase of Americans’ data from brokers, the gap between surveillance authorities and constitutional protections has become impossible to ignore. If “trust is the lifeblood of democracy,” then these findings suggest that America is running dangerously low.
 
Congress now faces a choice. It can once again rush through a “clean” reauthorization of Section 702, ignoring both public opinion and constitutional concerns. Or it can act – by requiring warrants for searches of Americans’ communications, closing the data broker loophole, and imposing real oversight.
 
Fortunately, the path forward is clear:
 
—Reform Section 702.
 
—Restore the warrant requirement.
 
—Rebuild public trust.

Reading the private communications of Americans – without showing evidence of wrongdoing to obtain a warrant from a judge – violates the Constitution, disrespects American values, and opens the door to abuse.

Yet Congress is once again caught up in a debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), with some claiming that a warrant rule would endanger lives and national security.

The Center for Democracy and Technology and PPSA teamed up to brief Congress on the realities and actual numbers behind these claims about the examination of “U.S. person” queries – searches of people in America whose texts, emails, and calls get caught up in the National Security Agency’s global trawl of data.

Here are some of the myth-exploding facts from our brief.

MYTH #1: U.S. person queries are immensely important in a broad array of situations, making it dangerous to place restrictions on this important tool.

REALITY: Queries only provide value in a limited set of situations – and the proposed warrant rules provide exceptions to account for all of them.

Testimony from the intelligence community, the President’s Intelligence Advisory Board, and the Privacy and Civil Liberties Oversight Board uncovered only a few distinct scenarios in which U.S. person queries provided value. And the proposed warrant rule includes exceptions to the warrant requirement that account for them.

These exceptions include tracking the signatures of cyber threats, gaining consent from Americans targeted for foreign assassination and kidnapping plots, and tracking Americans’ contacts with suspicious foreign contacts. The government has yet to produce a single instance in which a warrant requirement would have impeded such efforts. Even then, the exceptions in reform proposals allow warrantless inspection of metadata – who contacted whom – leaving the government free to track Americans who are communicating with terrorists or foreign spies.

MYTH #2: U.S. person queries need to be done quickly and efficiently in the case of a “ticking time bomb,” and a warrant rule would slow the process down in a manner that endangers Americans’ lives.

REALITY: The government has never shown that queries provide such time-sensitive responses. But if they are needed, and the clock is ticking, once again the reform proposals include exceptions for such “exigent circumstances” scenarios.

In short, the exigent circumstances, cybersecurity, consent, and metadata exceptions to the proposed warrant requirement allow the government to respond to threats quickly.

MYTH #3: Warrants are not feasible given the scale of U.S. person queries – adding a warrant requirement would overwhelm intelligence agencies and the courts.

REALITY: By permitting warrantless metadata queries – such as communications logs – the warrant rule ensures that the government will not need to go to court frequently.

In 2023, the most recent year for which data is available, the FBI conducted queries for over 57,000 unique U.S. person terms, an unacceptable degree of government overreach and fishing expeditions.

Only 1.58 percent of the FBI’s U.S. person queries resulted in FBI agents accessing the content of communications. Thus, even if queries continued to be conducted at the prior rate of 57,000 annually – which is unlikely given that many of these queries were improper or overly broad – a warrant would be potentially applicable to less than 1,000 queries a year.

That’s less than three such queries per day on average, hardly an insuperable burden on the FBI and the courts.

Because the proposed warrant rule would permit warrantless metadata queries – only requiring court approval to access the content of messages – agencies would be able to confirm when a query will yield a “hit” before devoting any time and effort to seeking a warrant.

And most of those two to three queries per day would fall under the exceptions to the warrant requirement.

Our brief to Congress concludes:

“Americans’ basic rights should not be secondary to bureaucratic hurdles and staffing limits. The exceptions and exemptions built into the warrant proposal would allow the government to remain within the boundaries of the Constitution while also having the means to protect national security.”

​As the April 20 expiration of FISA Section 702 approaches, a familiar script is playing out on Capitol Hill. Members are warned that any delay in reauthorizing Section 702 – which enables U.S. intelligence agencies to surveil foreign threats – risks allowing a terrorist attack to unfold on American soil.

This “you will have blood on your hands” argument is not just wrong. It is a cynical ploy to short-circuit a debate that Congress owes the American people, one that would in no way endanger national security.

Here is the reality: Letting the statutory authority of Section 702 lapse does NOT mean America’s surveillance goes dark. Surveillance continues under Section 702 certifications issued by the Foreign Intelligence Surveillance Court, which remain valid until their expiration – currently extending to March 2027.

This is not speculation. It is how this law works. As The New York Times has reported, legal directives to communications providers “shall continue in effect” under existing court authorizations.

Yet lawmakers are again being told by the intelligence community to act immediately or risk catastrophe. This fear-based messaging has become routine, repeatedly stampeding Congress into reauthorizing Section 702 without strong reforms to protect Americans’ privacy.

Enacted by Congress to target foreign threats abroad, Section 702 has been used to conduct millions of warrantless searches of Americans’ communications – peaking at 3.4 million in 2021. These are the predictable results of allowing the government to conduct “backdoor searches” without a warrant.

In 2024, a bipartisan amendment to require warrants for searches of Americans’ communications failed in a 212–212 tie in the House. That vote showed how close meaningful reform is – if lawmakers are given the time to pursue it.

Supporters of a “clean” extension – one without any reform amendments – are once again promising a debate on reforms later. Such promised reform debates never arrive. Recent history gives no reason to believe that this time will be different.

Congress has time to debate well beyond April 20. It has time to patiently consider reforms, such as adding a warrant requirement before 702-derived communications of Americans can be inspected.
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The choice for Congress is not between national security and civil liberties. It is between rubber-stamping a flawed surveillance authority and doing the hard work of fixing it for their constituents.

Why does PPSA oppose a “clean” extension – without any changes or reforms – of the scandal-ridden Section 702 of the Foreign Intelligence Surveillance Act (FISA)? Recent history shows how much is at stake when the U.S. House votes in April on whether to reauthorize this surveillance authority, and why Congress must allow time for significant debate and reforms.

Section 702 was enacted by Congress to enable U.S. intelligence agencies to surveil foreign threats on foreign soil. The intelligence community maintains that the communications of Americans are swept up in the National Security Agency’s global trawl only “incidentally.”

Patrick Eddington, a former CIA officer now a Cato Institute policy analyst, writes that the rub is that “the practice is not incidental but a predictable, systematic, and – from the government’s perspective – valuable byproduct of the program.”

Here are some examples of what “incidental” looks like:

• The FBI in 2021 conducted more than 3 million warrantless searches of Americans’ communications under Section 702. This was an astonishing abuse of a surveillance power that Congress designed for foreign surveillance, not warrantless surveillance of Americans.

 

• The FBI, in violation of its own rules, illegally searched for the communications of 19,000 donors to a congressional campaign, of multiple U.S. government officials, of journalists, of political commentators, of a local political party, of people who came to the FBI to perform repairs, of victims who approached the FBI to report crimes, of business, religious, and community leaders who applied to participate in the FBI’s “Citizens Academy,” of college students participating in a “Collegiate Academy,” of police officer candidates, of colleagues and relatives of FBI agents, and of Black Lives Matter and January 6 protesters.

 

• Some of the most egregious improper queries occurred after the FBI implemented new rules to curb abuses. In April 2023, a FISC opinion revealed that the FBI in 2022 dipped into Section 702 data to warrantlessly spy on a U.S. Senator, a state senator, and a state judge.

 

• Just last week, the FBI admitted that it has resumed collecting Americans’ location data and movements – where we go and potentially those we meet with – by purchasing that data from third-party data brokers. Though this is not a Section 702-authorized program, it is a clear sign of the hunger the government has for collecting our data without a warrant.

Three evils emerge from what has become a routine domestic surveillance program.

• The first evil is that warrantless surveillance of Americans – which completely sidesteps the Constitution’s Fourth Amendment requirement for a probable cause warrant – gives the FBI a “backdoor search” loophole. By conducting fishing expeditions, the FBI can develop predicates for investigating Americans outside of constitutional boundaries.

The intelligence community objects to this characterization, stoutly maintaining that Section 702 is not directed at Americans. To quote Eddington again:

“The Foreign Intelligence Surveillance Court (FISC) and multiple congressional oversight reports have documented thousands of such searches annually, many involving wholly domestic criminal investigations with no foreign intelligence nexus.”

• The second evil is where this data can go. Once Americans’ data is collected by surveillance programs authorized by Section 702, it can be held for years. With a recent move by the Trump administration to tear down long-standing data silos between the agencies, this information could soon be at the fingertips of dozens of federal agencies, including the IRS, the Department of Homeland Security, and the ATF.

 

• The third evil is the ability of AI to quickly turn vast amounts of data from domestic surveillance into actionable intelligence against Americans.

PPSA agrees that Section 702 is an important authority, needed to keep Americans safe from foreign threats. We also believe that we can protect civil liberties and national security at the same time. There is no reason for Members of Congress to be panicked by a needless legislative game of chicken.
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Defenders of civil liberties should stand together to test the value of various reform amendments in the crucible of a much-needed open debate.

We usually think of the government’s domestic surveillance abuses as violations of the Fourth Amendment protections against warrantless searches. Section 702 of the Foreign Intelligence Surveillance Act (FISA) was enacted to monitor foreign threats on foreign soil. In practice, however, it has been used by the FBI to sweep up the communications of millions of Americans on American soil and to specifically surveil thousands of Americans – all without warrant.

Now, with a House vote looming in April, Congress is considering a “clean” reauthorization – one that stiff-arms debate over amendments that would impose basic guardrails on warrantless surveillance of Americans.

What is obvious – but just as alarming – is that a “clean” reauthorization could also threaten Americans’ Second Amendment rights.

Congress has long prohibited the creation of a federal registry of American gun owners. Yet, as Cato Institute scholar Patrick Eddington explains, Section 702 might offer the government a workaround of the Firearm Owners Protection Act of 1986 “at a level of commercial granularity that a formal registry might never achieve.”

How? Many handguns, rifles, and much of the ammunition sold in the United States are manufactured abroad. These foreign manufacturers are caught in the NSA’s global trawl as they communicate with their U.S. operations about everything from inventory management to purchase orders.

Eddington writes on the Cato Institute Blog:

“When Americans buy a Glock pistol, a Beretta shotgun, or a box of Czech-made Sellier & Bellot ammunition at their local gun store, they likely assume the transaction is between them, the dealer, and perhaps the ATF’s background check system. What they almost certainly don’t know is that the business communications underpinning that entire supply chain – every email, phone call, and text between U.S. importers and their foreign suppliers – is almost certainly being vacuumed up and stored under the Section 702 database.”

Layer onto this the current administration’s push to break down long-standing agency data silos under Executive Order 14243. It takes little imagination to see how the FBI, ATF, or the Department of Homeland Security might do exactly what Congress forbids – create a registry of Americans who own firearms. Add artificial intelligence, and the creation of such a registry goes from possible to easy.

Worse, Section 702 data is retained for years. Even if the current administration does not exploit this capability, it could become a very useful tool for the next administration.

Section 702 thus arms the government with the means to violate not only the Fourth Amendment, but the Second – and even the First. The ability to track what people say, where they go, and whom they associate with opens the door to mapping political, religious, and social networks – core First Amendment activities.

More abuses may soon come to light. By April 10, the administration must produce documents in response to a Cato Freedom of Information Act request detailing instances of noncompliance with the law by federal agencies over the last two years.
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Section 702 has been too prone to scandalous violations of Americans’ rights to give it a green light with no reforms. For the sake of our First, Second, and Fourth Amendment rights, this surveillance authority must be open to debate and reforms.

Talk of a “clean reauthorization” of Section 702 of the Foreign Intelligence Surveillance Act (FISA) is growing on Capitol Hill. But as Washington starts to dream of an easy vote that includes no surveillance reforms, the American people are not having it.
 
FISA Section 702 is an authority enacted by Congress to enable the surveillance of foreign threats on foreign soil, but it has often been used by the FBI in recent years to spy on the communications of millions of Americans. Included in that debate is concern over the way in which a dozen federal agencies – ranging from the FBI to the IRS – are purchasing Americans’ personal information from shady third-party data brokers.
 
A new poll commissioned by Demand Progress shows that Americans are paying attention to this threat to privacy – and they don’t like what they see.

• Only 12 percent of voters, including 17 percent of Republicans and eight percent of Independents, believe Congress should renew surveillance and monitoring activities without reforms.

 

• Some 37 percent of voters, including a plurality of 41 percent of Republicans, think FISA should only be reauthorized if it contains restrictions on government purchases of our personal data.

 

• Another 37 percent don’t want the program reauthorized at all.

The poll also shows that the recent dust-up between the Pentagon and AI company Anthropic is focusing the public’s attention on the potential for the government to use artificial intelligence to drive the surveillance of the American people to unprecedented levels.
 
This is especially true as the administration works to dismantle long-standing information silos and remove safeguards that once limited the sharing of Americans’ private data between agencies – from the Department of Homeland Security to the FBI and the IRS.
 
AI surveillance, with data collected under Section 702, could allow government employees across the federal bureaucracy to run warrantless searches of Americans’ private communications. Combined with the vast amounts of Americans’ personal data that federal agencies purchase from third-party data brokers, AI-run surveillance programs will have truly frightening reach.
 
The poll also shows that Americans are watching the AI debate and that a majority see it as a threat to privacy.
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• Sixty-six percent of voters – including 76 percent of Independents and 52 percent of Republicans – believe the government should not be able to force AI companies to grant unrestricted access to analyze Americans’ personal data.

Before Congress embraces a comfortable conformity on a “clean” reauthorization of Section 702 or any other surveillance authority, Members would do well to pay attention to the rising alarm over surveillance among their constituents.

The Government Surveillance Reform Act (GSRA), which would stop federal agencies from buying Americans’ most personal data from shady data brokers while reforming Section 702 of the Foreign Intelligence Surveillance Act (FISA), was reintroduced on Thursday with strong bipartisan and bicameral support.

Sens. Mike Lee (R-UT) and Ron Wyden (D-OR), and Reps. Warren Davidson (R-OH) and Zoe Lofgren (D-CA) are the sponsors of the GSRA, which balances comprehensive surveillance reform with national security.

“It leaves in place the authorities needed to protect the American people from foreign threats, while reforming what Senator Lee calls ‘illegal government spying’ directed at Americans,” said Bob Goodlatte, former Chairman of the House Judiciary Committee and now Senior Policy Advisor to PPSA.

Cosponsors of the bill include Sens. Cynthia Lummis (R-WY) and Elizabeth Warren (D-MA), and Reps. Sara Jacobs (D-CA) and Pramila Jayapal (D-WA).

Among its many reforms, the GRSA:

Closes the backdoor search loophole: By requiring a warrant for the government to inspect Section 702 information, the bill stops federal agents from fishing through warrantlessly obtained data to generate suspicions about Americans.

Ends reverses targeting: It prohibits the use of foreign surveillance as a pretext to gather data on Americans.

Closes the data broker loophole: The bill bans the practice of federal agencies buying some of our most personal information from data brokers without a warrant.

Repeals the “Make Everyone a Spy” provision: The bill repeals a controversial 2024 provision that allows the government to force millions of Americans and companies to secretly spy on its behalf.

Updates privacy protections for AI and other modern technologies: The bill’s warrant requirement extends to Americans’ location information, web browsing data, search and chatbot records, and the wealth of data collected by modern vehicles.

Expands the use of amici in the secret FISA courts: The bill mandates increased use of amici curiae – experts in privacy and civil liberties – to represent the civil rights of the American people in sensitive cases before secret courts that have no adversarial process. It also provides these advisors to the court with full access to all relevant information needed to do their job.

“It has been said that the Government Surveillance Reform Act is the most balanced and comprehensive surveillance reform bill in almost half a century,” Bob Goodlatte said. “It enjoys deep bipartisan and bicameral support because many Members of Congress are alarmed by the abusive and pervasive surveillance of the American people.
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“This well-crafted legislation must be included in the reauthorization of FISA Section 702 in April.”