TL;DR: Section 702 of the Foreign Intelligence Surveillance Act lets the government collect communications of foreigners abroad, and "incidentally" scoop up millions of Americans' emails, calls, and messages. The FBI then searches this database without warrants, running over 3 million queries on Americans annually. On December 11, 2025, four witnesses told Congress the program was "sold as" foreign surveillance but has become domestic spying. One former US attorney called the original promises "a lie." Section 702 expires April 19, 2026. Congress has four months to add a warrant requirement, or let the surveillance continue unchecked.
What Is Section 702?
Section 702 of FISA was created in 2008 to let intelligence agencies collect communications of foreign targets abroad [1].
The official purpose:
- Target foreigners located outside the United States
- Collect foreign intelligence information
- No warrant required for foreign targets
What actually happens:
- NSA compels tech companies and telecom providers to provide access
- When foreigners communicate with Americans, those American communications get collected too
- The FBI can then search the database for Americans' communications
- No warrant required for these "backdoor searches"
The program was designed for foreign intelligence. It's become a domestic surveillance tool.
The Scale of Domestic Surveillance
Section 702 isn't a small program [2]:
| Metric | Number |
|---|---|
| Annual FBI queries on Americans | 3+ million |
| Personnel with search access | 10,000+ |
| Total annual backdoor searches | 200,000+ |
| Program expiration | April 19, 2026 |
That's 3 million warrantless searches on Americans per year. A federal judge described the FBI's compliance as showing "persistent and widespread" abuses of even the minimal existing rules.
Polling from YouGov shows more than 75% of Americans favor a warrant requirement. Congress ignored them during the 2024 reauthorization.
The December 2025 Hearing
On December 11, 2025, the House Judiciary Committee held a hearing on FISA reform [3]. Four witnesses, from across the political spectrum, agreed: the current system is broken.
The witnesses:
- Elizabeth Goitein, Senior Director, Brennan Center for Justice
- Gene Schaerr, General Counsel, Project for Privacy & Surveillance Accountability
- James Czerniawski, Consumer Choice Center
- Brett Tolman, Former US Attorney, Right on Crime
Their recommendation: Require probable-cause warrants for searching Americans' communications, or let Section 702 expire.
"That Was a Lie"
Brett Tolman, a former US attorney who was "in the room" when Section 702 was created, didn't mince words [4]:
"Section 702 was sold to Congress as a vital tool to target foreign adversaries. We were given high-stakes assurances... that it would not be used improperly against honest Americans. I was in the room when they represented it would not be abused. That was a lie."
This is a former federal prosecutor, appointed by Republicans, calling the original justifications for Section 702 false.
The FBI promised not to use foreign intelligence collection against Americans. They broke that promise millions of times.
Documented Abuses
The FBI's misuse of Section 702 isn't theoretical [5]:
Known abuse cases:
- FBI searched for communications of a US Senator
- FBI searched for communications of a state Senator
- FBI searched for communications of a state judge
- FBI searched for George Floyd protesters
- FBI searched for January 6 participants
- FBI agents conducted searches on personal romantic interests
A FISA court opinion revealed that the FBI conducted searches on 19,000 donors to a congressional campaign.
These aren't foreign terrorists. These are Americans exercising constitutional rights, or just people FBI agents were personally curious about.
The SAFE Act Alternative
Senators Dick Durbin (D-IL) and Mike Lee (R-UT) introduced the Security and Freedom Enhancement (SAFE) Act as a bipartisan alternative [7].
What the SAFE Act would do:
- Require a warrant or FISA order before accessing Americans' communications
- Close the data broker loophole (agencies can't buy their way around the Fourth Amendment)
- Reauthorize Section 702 for legitimate foreign intelligence
- Preserve national security capabilities while adding civil liberties protections
The key provision: Intelligence agencies would need probable cause before reading your emails, not just before collecting them.
The SAFE Act hasn't passed. But with Section 702 expiring in April 2026, Congress has another chance.
The Data Broker Loophole
Even if Congress adds a warrant requirement for Section 702, there's another problem [8].
The loophole: Intelligence and law enforcement agencies can buy the same data from commercial data brokers, no warrant required.
What they're buying:
- Location data from apps
- Web browsing history
- Purchase records
- Social media activity
- Communications metadata
If the Fourth Amendment requires a warrant to collect data, it shouldn't matter whether the government collects it directly or buys it from a broker. But current law allows the purchase workaround.
The SAFE Act would close this loophole. The 2024 reauthorization didn't.
What's at Stake
Section 702 expires on April 19, 2026. Congress has options [9]:
Option 1: Let it expire
- Warrantless foreign surveillance ends
- FBI loses backdoor search capability
- Intelligence community claims national security harm
Option 2: Reauthorize with warrant requirement
- Foreign surveillance continues
- Americans get Fourth Amendment protection
- FBI can still search, with judicial approval
Option 3: Reauthorize without reforms
- Warrantless domestic surveillance continues
- FBI keeps running millions of queries on Americans
- Abuses continue unchecked
The intelligence community is lobbying hard for Option 3. Privacy advocates are pushing for Option 2. Option 1 is the nuclear option if Congress can't agree.
Rare Bipartisan Agreement
The December hearing showed something unusual: bipartisan agreement that reform is needed [10].
From the left:
- Rep. Jamie Raskin called for "significant reforms and safeguards"
- Brennan Center's Elizabeth Goitein urged warrant requirements
- ACLU continues to demand Fourth Amendment protections
From the right:
- Chairman Jordan cited 3 million searches on Americans as a concern
- Former US Attorney Brett Tolman called original promises "a lie"
- Senator Mike Lee co-sponsored the SAFE Act
When the Brennan Center and Right on Crime agree, the issue transcends partisan politics. The question is whether Congress will act.
What You Can Do
Contact your representatives:
- Call your Senators and House member
- Demand support for the SAFE Act or equivalent reforms
- Ask them to require warrants for searching Americans' communications
Resources:
Section 702 expires in April. The window for reform is closing. If you care about warrantless surveillance, now is the time to act.
The Bottom Line
Section 702 was sold as foreign intelligence collection. It's become a domestic surveillance tool. The FBI runs over 3 million warrantless searches on Americans every year. 10,000+ people have access to the database. Documented abuses include searching politicians, protesters, donors, and personal romantic interests.
A former US attorney who helped create the program called the original assurances "a lie." Four witnesses, from across the political spectrum, told Congress the reforms from 2024 weren't enough.
Section 702 expires April 19, 2026. Congress has four months to decide whether to require warrants for searching Americans' communications, or let the surveillance continue.
The FBI doesn't want reform. The intelligence community is lobbying against it. But 75% of Americans support a warrant requirement. The question is whether Congress listens to voters or to the agencies that have been abusing this power for years.
References
- Congressional Research Service, FISA Section 702 and the 2024 Reforming Intelligence and Securing America Act
- House Judiciary Committee, Democrats and Republicans Agree on Need for Reforms (December 2025)
- Charity & Security Network, Congress Explores Reforming FISA (December 2025)
- DNYUZ, Warnings Mount in Congress Over Expanded US Wiretap Powers (December 2025)
- Brennan Center, Why Congress Must Reform FISA Section 702
- ACLU, Senate Reauthorizes and Expands Section 702 Surveillance (April 2024)
- Senate Judiciary Committee, Durbin, Lee Introduce Bipartisan SAFE Act
- EPIC, FISA Section 702: Reform or Sunset
- Brennan Center, What's Next for Reforming Section 702
- House Judiciary Committee, Rep. Raskin's Opening Statement on FISA Reforms (December 2025)