Three Months to Fix FISA: The Surveillance Fight Congress Can't Dodge

TL;DR: FISA Section 702 expires April 20, 2026. Last time Congress voted on requiring a warrant for FBI searches of Americans' communications, it lost by a single tie vote: 212-212. Since then, a federal court ruled those searches unconstitutional, the privacy oversight board was gutted, and the FBI eliminated its own internal audit office. The FBI still runs over 200,000 warrantless searches of Americans' data per year. Congress has about 83 days to decide what happens next.

The Clock Is Ticking

On April 20, 2026, Section 702 of the Foreign Intelligence Surveillance Act expires. Again.

Section 702 lets the NSA collect communications of foreign targets outside the US without individual warrants. Sounds reasonable. The problem: Americans' calls, texts, and emails get swept up too. Millions of them. And the FBI searches through that haul looking for Americans' data, without a warrant, without probable cause, without telling you.

In 2021, the FBI ran 3.4 million of these "backdoor searches." After public outrage, that dropped to about 200,000 per year. Still 200,000 warrantless searches of Americans' private communications. Every year.

The targets of these searches? Black Lives Matter protesters. January 6 suspects. Journalists. A sitting US senator. A state senator. A state court judge who contacted the FBI to report civil rights violations. And 19,000 donors to a congressional campaign ^[1].

One Vote Away

When Congress last reauthorized Section 702 in April 2024, privacy advocates came closer than ever to requiring a warrant for backdoor searches. An amendment to the Reforming Intelligence and Securing America Act (RISAA) failed in the House by a 212-212 tie. One vote. A modified version lost in the Senate by a wider margin, but the House result shook the intelligence community ^[2].

House Speaker Mike Johnson, who initially supported the warrant requirement, switched his vote to break the tie against it. As a concession to reformers, he agreed to shorten the reauthorization from five years to two. That's why we're here again, and why the next fight could go differently.

The math has changed since 2024. New members of Congress, a federal court ruling backing the warrant requirement, and growing bipartisan anger over FBI abuses all shift the calculation. The ACLU, CDT, EPIC, Brennan Center, and a coalition of over 30 civil liberties groups are already mobilizing ^[3].

A Court Finally Said It: These Searches Are Unconstitutional

In December 2024, Judge LaShann DeArcy Hall of the US District Court for the Eastern District of New York issued a ruling that privacy advocates had waited years for: backdoor searches of Section 702 data require a warrant under the Fourth Amendment ^[4].

It was the first time any court said so directly. The government is appealing, and the ruling only applies to one district for now. But it fundamentally changes the 2026 debate. Congress can no longer claim there's no legal basis for a warrant requirement. A federal judge just provided one.

The EFF called it a "victory" that "vindicated years of advocacy." The Cato Institute noted it could reshape how Section 702 evidence is used in national security prosecutions across the country ^[5].

RISAA Didn't Reform 702. It Expanded It.

The 2024 reauthorization was sold as a reform package. It wasn't. Here's what RISAA actually did:

Expanded who has to help the NSA spy. RISAA broadened the definition of "electronic communication service provider" to include anyone with "access to equipment that is being or may be used to transmit or store" communications. Senator Ron Wyden called it "one of the most dramatic and terrifying expansions of government surveillance authority in history." That's not hyperbole. The new definition could compel landlords, data center operators, building maintenance workers (anyone who touches internet infrastructure) to assist with surveillance ^[6].

No warrant requirement. Despite the closest vote ever, RISAA passed without requiring warrants for US person queries.

Classified the key details. The specific type of company RISAA was designed to bring under 702's umbrella? That's classified. We don't get to know which new entities the NSA can conscript. The provision was based on a classified 2023 FISA Court opinion that's never been released to the public ^[7].

The DOJ sent a letter promising it would apply the expanded definition "narrowly." Senator Wyden's response: that promise isn't binding on this administration, and it certainly won't bind the next one.

The Watchdogs Got Fired

While Congress debates whether to add safeguards, existing oversight has been stripped away.

In January 2025, President Trump fired the Democratic members of the Privacy and Civil Liberties Oversight Board (PCLOB), the independent body Congress created specifically to watchdog surveillance programs like 702. The board now has one part-time member. It can't investigate. It can't hold hearings. It can't publish reports ^[8].

The FBI also eliminated its Office of Internal Auditing, established in 2020 to track compliance with query rules. So the agency that conducts 200,000 warrantless searches per year disbanded the office responsible for auditing those searches.

Liza Goitein of the Brennan Center told the House Judiciary Committee in December 2025 that the FBI "has not taken steps to track and report on its searches," making it impossible to evaluate whether RISAA's operational reforms have done anything at all ^[8].

About 10,000 people have authority to search Section 702 databases. The FBI reports approximately 4,000 compliance violations per year. With no audit office and a gutted oversight board, nobody's watching the watchers.

What the Reform Coalition Wants

Over 30 organizations spanning left and right (the ACLU, EFF, CDT, Brennan Center, FreedomWorks, Restore the Fourth) have endorsed the Government Surveillance Reform Act (GSRA). Their demands ^[9]:

Warrant requirement before the FBI can search 702 databases for Americans' communications
Close the data broker loophole that lets agencies buy data they'd need a warrant to collect directly
Fix FISA Court transparency: publish redacted opinions, let court-appointed advocates flag controversial approvals for appeal
Restore oversight: rebuild PCLOB, require the FBI to track and report on its searches
Narrow the ECSP definition so landlords and maintenance workers aren't conscripted into surveillance

The intelligence community will argue that a warrant requirement amounts to a "de facto ban" because many queries wouldn't meet the probable cause standard. Privacy advocates counter: that's exactly the point. If you can't show probable cause, you shouldn't be reading Americans' private messages.

What Happens If 702 Sunsets?

Here's the thing: even if Section 702 expires on April 20, the government doesn't necessarily stop collecting. Existing certifications could carry surveillance forward for up to a year. The NSA used this loophole in 2018 when the previous authorization briefly lapsed ^[10].

But a sunset creates leverage. Congress can't ignore an expiration date. The two-year window was designed to force exactly this kind of reckoning. The question is whether leadership will allow a real debate or ram through another clean reauthorization at the last minute.

In December 2025, the House Judiciary Committee held a hearing on 702 oversight. Chairman Jordan highlighted the scale of abuses. Both parties expressed concern. The bipartisan appetite for reform hasn't disappeared. It got louder ^[8].

What You Can Do

Contact Your Representatives

The warrant amendment lost by one vote. Your representative's position matters. Call or write your House member and both senators. Tell them: no reauthorization without a warrant requirement. The ACLU has a call-to-action page with templates and contact tools.

Support the Organizations Fighting This

The ACLU, EFF, CDT, EPIC, and Brennan Center are leading the push for reform. They need funding and public support ahead of the April deadline. Follow their 702 campaigns for updates on when Congress schedules votes.

Protect Your Communications Now

Use end-to-end encrypted messaging (Signal, not SMS). Use a VPN. Minimize data with US-based services that may be subject to 702 collection. These steps won't make you invisible, but they reduce the pool of data available for warrantless searches.

83 Days

Congress has roughly 83 days. The warrant amendment lost by one vote. A federal court says these searches violate the Fourth Amendment. The oversight board is gutted. The FBI's audit office is gone. And 200,000 warrantless searches continue every year.

The 2024 fight was the closest reformers have ever come. The 2026 fight might be the last clean shot at fixing this before the next reauthorization cycle. Pay attention. This one matters.