Congress Returns With 32 Days to Fix America's Surveillance Law

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TL;DR: Congress returns from recess on May 12. FISA Section 702 (the law that lets the NSA collect foreign communications and the FBI search them for Americans' data without a warrant) expires on June 12. That's 32 days. A classified FISA Court opinion from March 17, 2026 found ongoing violations of Americans' rights under the program. The FBI's own numbers show queries of Americans' data rose 35% in 2025, and the Bureau still can't account for an unknown number of searches conducted through untracked "filtering tools" ^[1][2]. The only bipartisan reform bill on the table, the Government Surveillance Reform Act from Sens. Wyden and Lee, would require warrants for American queries, ban data broker purchases, and restore the gutted Privacy and Civil Liberties Oversight Board ^[3]. Sen. Tom Cotton wants an 18-month clean extension with zero reforms ^[4]. This is the last window. If Congress punts again, Section 702 either sunsets or gets renewed unchanged.

Where We Are

Section 702 has already survived three deadlines in 2026. The original sunset was April 20. Congress blew past it with a 10-day emergency extension passed at 2 AM. Then the House passed a 3-year reauthorization with a CBDC poison pill that the Senate killed on arrival. On April 30, Congress settled for a 45-day extension, the second temporary fix in two weeks ^[5][6].

That 45-day clock runs out around June 12. Congress returns from recess tomorrow. They have 32 days, roughly 22 working days, and a Senate that hasn't agreed on anything yet.

The Secret Court Opinion Nobody's Allowed to Read

On March 17, 2026, the Foreign Intelligence Surveillance Court issued an opinion that found "serious violations of Americans' constitutional rights" in how the Trump administration uses Section 702 ^[7]. The opinion was delivered to Congress. It remains classified.

Here's what's leaked: The FISA Court found that the FBI's compliance problems with Section 702 are ongoing and extend beyond the Bureau. In August 2024, DOJ inspectors discovered that the FBI had been using a querying tool that let agents search Americans' communications without following the safeguards Congress put in place through the 2024 Reforming Intelligence and Securing America Act (RISAA). The FBI said it stopped using that tool. The March 2026 opinion reportedly found the FBI is using another tool with the same functionality, and this time, DOJ signed off on it ^[1][8].

Because none of these "filtering tool" queries were tracked, counted, or audited, there is no way to know how many Americans' communications were searched without proper safeguards in 2024 or 2025. The FBI's reported query numbers are incomplete by definition ^[1].

Sen. Wyden blocked the 45-day extension until he got a deal: Intelligence Committee Chair Tom Cotton and ranking member Mark Warner agreed to send a letter demanding the executive branch declassify the opinion within 15 days ^[7][9]. That deadline has passed. The opinion is still classified.

The Numbers the FBI Does Report Are Bad Enough

Even the incomplete data is damning. FBI queries of Americans' data under Section 702 rose 35% in 2025, from 5,518 reported searches in December 2024 to 7,413 in November 2025 ^[2]. And those are the queries the FBI actually tracked.

For context: in 2021, the FBI conducted 3.4 million warrantless searches of Americans' 702 data in a single year. The reported numbers dropped dramatically after Congress added new requirements in 2024, but we now know those requirements were being bypassed through untracked querying tools. The actual number of searches could be far higher than what the FBI reports ^[1][10].

Only 28% of FBI queries in 2025 returned any 702-acquired information at all, down from 38% in 2024 ^[2]. That means more than seven out of ten searches of Americans' data came back empty. The FBI is casting a wide net and catching almost nothing, which is exactly what a fishing expedition looks like.

Two Bills, Two Futures

Congress has two options on the table. They represent completely different visions of what surveillance in America should look like.

The Reform Bill: Government Surveillance Reform Act

Introduced in March 2026 by Sens. Ron Wyden (D-OR) and Mike Lee (R-UT), with House companions from Reps. Zoe Lofgren (D-CA) and Warren Davidson (R-OH). Cosponsors include Sens. Cynthia Lummis (R-WY) and Elizabeth Warren (D-MA). It's the only bipartisan, bicameral reform bill ^[3][11]. Here's what it would do:

Require a warrant for FBI searches of Americans' communications in the 702 database, with exceptions for emergencies and imminent threats
Ban the government from buying Americans' data from data brokers without a warrant, closing the loophole where agencies skip the Fourth Amendment by purchasing what they can't legally collect
Repeal the 2024 RISAA expansion that lets the government force millions of Americans and businesses to secretly assist with surveillance
Prohibit reverse targeting: using Section 702's foreign-facing authority as a pretext to collect Americans' communications
Restore the Privacy and Civil Liberties Oversight Board with confirmed members, ban politically motivated firings, and require timely audits

The Extension: Cotton's 18-Month Renewal

Senate Intelligence Committee Chair Tom Cotton (R-AR) wants a clean 18-month extension. No warrant requirement. No data broker ban. No new oversight. No changes at all ^[4]. Cotton has cited Iran tensions and the ongoing military situation as justification for maintaining the program unchanged.

Cotton warned Wyden there would be "consequences" for publicly discussing the classified FISA Court opinion, saying Wyden was "distorting highly classified material" ^[7]. When a senator threatens another senator for talking about surveillance abuses, it tells you something about which side of the debate has the stronger argument.

The Political Math

Reform has a bipartisan coalition. Wyden and Lee. Lofgren and Davidson. Warren and Lummis. Left-libertarian and right-libertarian members who agree on almost nothing else agree that the government shouldn't be able to search Americans' private communications without a judge's approval.

But reform keeps losing. Why?

The intelligence community fights it. NSA, FBI, and CIA directors have all testified that a warrant requirement would "inhibit the efficacy" of Section 702 ^[12]. The White House backs a clean extension. Senate leadership controls the floor calendar, and Cotton controls the Intelligence Committee.

In April, four swing Democrats (Golden, Gottheimer, Suozzi, and Gluesenkamp Perez) crossed party lines to vote for a 3-year reauthorization without a warrant requirement. Rep. Jamie Raskin, who voted for the 2024 reauthorization, reversed course and called the safeguards "badly eroded." But the votes that matter are in the Senate, where Cotton and Majority Leader Thune control whether any reform bill gets a floor vote.

The declassification deal was supposed to change the dynamic. If the public could read what the FISA Court actually found, the pressure for reform might build to the point where a clean extension becomes politically toxic. So far, the opinion remains classified. That silence is its own kind of answer.

What Happens in the Next 32 Days

Three scenarios:

Scenario 1: Clean extension. Cotton gets his 18-month renewal with no reforms. This is the most likely outcome. The intelligence community lobbying machine is well-oiled, the White House wants it, and Senate leadership controls the calendar. The warrant requirement dies again.

Scenario 2: Reform passes. Wyden and Lee's coalition holds, the declassified opinion shocks enough senators into action, and the GSRA, or something like it, gets through both chambers. This would be the most significant surveillance reform since the USA FREEDOM Act of 2015. It would also be surprising.

Scenario 3: Sunset. Congress can't agree on anything and Section 702 expires. This is what EPIC and EFF are pushing for if reform isn't possible ^[13]. A sunset wouldn't immediately end surveillance (existing 702 certifications would continue until they expire) but it would prevent new collection authorizations and force a real renegotiation.

If 2026 follows the pattern of every previous 702 deadline, expect Congress to wait until the last possible week, hold a handful of dramatic floor speeches, and pass a clean extension with enough bipartisan support to avoid a sunset. The reform coalition will get promises of "future consideration." The FISA Court opinion will stay classified long enough for the news cycle to move on.

Why This Time Could Be Different

There are three things that weren't true in previous reauthorization fights.

First, we now have a federal court ruling that backdoor searches of 702 data are unconstitutional. In January 2025, a federal district court ruled for the first time that querying 702-collected data for Americans' communications without a warrant violates the Fourth Amendment ^[14]. That ruling is being appealed, but it gives reform advocates legal ammunition they've never had before.

Second, the FISA Court itself is saying the system is broken. This isn't the ACLU or the EFF saying compliance is failing: it's the secret court that was designed to be a rubber stamp telling Congress the government is violating Americans' rights. When the surveillance court says there are "serious violations," the program has a credibility problem that talking points can't fix ^[7][8].

Third, the data broker loophole has become a mainstream issue. The connection between Section 702's warrantless searches and the government's purchase of Americans' location data, browsing history, and app data from commercial brokers is no longer an abstract policy debate. NPR, the New York Times, and the Brennan Center have all published investigations connecting these programs ^[15]. The GSRA's warrant requirement and data broker ban are a package deal, and the data broker story is the one that makes voters care.

Whether "could be different" becomes "actually is different" depends on what happens when senators return to Washington tomorrow.

What You Can Do

Call your senators. 5 Calls has a script and will connect you directly. Tell them to support the Government Surveillance Reform Act and oppose any clean extension without a warrant requirement. Congressional staffers track call volume. It matters.
Demand declassification. The FISA Court opinion from March 17 describes ongoing violations of Americans' rights. Congress agreed to request declassification within 15 days. That window has passed. Ask your representatives why the public still can't read what the surveillance court found.
Follow the timeline. The Brennan Center maintains a 2026 Section 702 resource page with real-time updates on legislative action. EPIC's Reform or Sunset campaign tracks the reform coalition and congressional votes.
Understand what's at stake. Section 702 collects the communications of foreigners abroad, but it also sweeps up an unknown volume of Americans' emails, texts, and phone calls. The FBI searches that data without a warrant. The FISA Court found ongoing violations. And Congress is about to decide whether to keep the system running unchanged for another 18 months or finally require a judge's sign-off before agents can read your messages.

Sources

Published: May 11, 2026