Gene Schaerr to the House Judiciary Committee: “It’s Getting Harder to Square the Emerging Surveillance State with the Declaration of Independence”

PPSA General Counsel Gene Schaerr testifying at the House Judiciary Committee hearing on December 11, 2025 (Click To Watch)

​PPSA General Counsel Gene Schaerr told the House Judiciary Committee on Thursday morning that Congress faces four critical opportunities to restore Americans’ privacy as Section 702 of the Foreign Intelligence Surveillance Act (FISA) comes up for reauthorization in April.

Schaerr praised the committee for holding a timely oversight hearing as the nation approaches the 250th anniversary of the Declaration of Independence. “But with every passing year,” he said, “it is harder to square our emerging surveillance state with the ‘consent of the governed’ articulated in the Declaration.”

One driver of the surveillance state is FISA Section 702, originally enacted to target foreign threats on foreign soil, but which has instead become a tool the federal government uses to warrantlessly spy on Americans at home, he told the committee.

Schaerr then outlined four reforms Congress can enact in the coming months:

1. Add a probable-cause warrant requirement for “queries” – or searches – of Americans' communications caught up in Section 702 surveillance.

Under current rules, government personnel can conduct “backdoor searches” of Americans’ emails, messages, and other communications collected under Section 702 without court approval. A warrant requirement would close this loophole.

2. Require warrants when federal agencies, from the FBI to the IRS, purchase Americans’ sensitive digital information from data brokers.

This commercially available data includes Americans’ browsing histories, transaction and purchase records, online searches, and other revealing information about their private beliefs and associations. It is far more intimate than anything gleaned from diaries or public records.

3. Narrow the 2024 “make everyone a spy” provision.

Added in the final hours of the last surveillance debate, this law obligates providers of free Wi-Fi to comply with secret NSA demands for private communications. It 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 of people using their buildings’ internet networks. Even churches and other houses of worship could be targeted.

4. Strengthen the role of cleared civil-liberties experts (amici) in the FISA Courts.

Schaerr urged Congress to require courts to rely on amici for politically sensitive FISA cases by finally enacting the “Lee-Leahy Amendment” that passed the Senate in 2020 with 77 votes.
“Nearly a decade after the Trump campaign and transition were illegally surveilled, this key reform – which would have prevented many of the abuses that occurred in 2016 – is still not in place,” Schaerr said. He also urged the loosening of restrictions that prevent existing amici from accessing key materials and proceedings, needed for meaningful oversight inside the secret courts.

Schaerr concluded by praising the committee for taking the lead on congressional surveillance reform.

“With the bipartisan focus that has come to define this Committee’s work in this important area, I am confident that you can right this ship,” Schaerr said.

Gene Schaerr’s full written testimony can be read here.

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