Two Bills. Zero Warrants.

The Three Bills: A Side-by-Side

Congress has three options on the table. Only one includes real reform. Guess which one isn’t getting a vote.

Bill 1: Johnson’s S.1318: The “Clean” Reauthorization

The Brennan Center called it “a thinly veiled straight reauthorization” [2]. That’s generous. S.1318 extends Section 702 for three years with no new limits on warrantless searches of Americans’ data. No warrant requirement. No data broker ban. No changes to the FBI’s querying authority that a secret court already found is being abused.

It passed the House in late April with 235 votes (including 42 Democrats who crossed the aisle) but the Senate killed it because GOP leadership had attached a ban on central bank digital currency. Senate Majority Leader Thune called the CBDC provision a non-starter [1][7]. The bill itself? No objections from leadership.

Bill 2: The Higgins Proposal: Same Wine, New Bottle

The Higgins proposal places “no limits on accessing Americans’ private communications,” per the Brennan Center’s analysis [2]. It’s the same approach as Johnson’s bill without the CBDC poison pill. Strip the political baggage, keep the surveillance powers intact.

Bill 3: The Government Surveillance Reform Act: The One That Requires Warrants

This is the bill that Sen. Wyden, Sen. Lee, Rep. Lofgren, and Rep. Davidson introduced in March 2026 [4]. It’s cosponsored by Sens. Elizabeth Warren and Cynthia Lummis and Reps. Sara Jacobs and Pramila Jayapal. Bipartisan. Bicameral. And politically invisible.

What it would do:

• Require a warrant for FBI searches of Americans’ location data, web browsing history, search records, and chatbot logs
• Ban the government from buying Americans’ data from data brokers without a warrant, closing the Venntell loophole the FBI is actively exploiting
• Prohibit pretextual targeting: no using foreign surveillance as a backdoor to collect Americans’ communications
• Restore the Privacy and Civil Liberties Oversight Board, which currently has one member [4]

Over 130 organizations support these reforms [2]. No floor vote is scheduled.

The Secret Court Opinion Congress Won’t Read Before Voting

On March 17, 2026, the Foreign Intelligence Surveillance Court issued an opinion finding “serious violations of Americans’ constitutional rights” in how the government uses Section 702. It’s classified. [5][8]

Here’s what’s leaked out:

In August 2024, DOJ inspectors discovered the FBI was using a “filtering tool” to search Americans’ communications without following the safeguards Congress put in RISAA. The FBI said it stopped. The March 2026 FISA Court opinion found the FBI is using another tool with the same functionality, and this time, DOJ signed off on it [8][9].

It gets worse. The court found this isn’t just an FBI problem. The querying tools are an issue “across the intelligence community,” meaning the NSA and CIA are running similar searches on Americans’ data through tools that aren’t tracked, counted, or audited [5][9].

Elizabeth Goitein of the Brennan Center explained the core issue: Congress needs to redefine “query” to cover “any search performed for the purposes of accessing or locating U.S. person information no matter where it lives or how it’s retrieved.” Right now, the FBI is exploiting that gap by calling searches something other than “queries” [9].

On May 21, DNI Gabbard confirmed her office is “working across the Intelligence Community and with the Department of Justice to expeditiously declassify the opinion, while ensuring the protection of sensitive sources and methods” [5]. Sen. Wyden pushed back: “Congress cannot reauthorize Section 702 without an open, public debate about how this surveillance law affects constitutional rights” [5].

The opinion is still classified. Congress is preparing to vote anyway.

The FBI Is Buying Your Location Data. Neither Bill Would Stop It.

In March 2026, FBI Director Kash Patel confirmed under questioning from Sen. Wyden that the Bureau is purchasing Americans’ location data from data broker Venntell. When Wyden asked if Patel would commit to stopping the practice, Patel declined, saying the FBI “uses all tools” and purchases “commercially available information that’s consistent with the Constitution” [6].

ICE and CBP are doing the same thing. They’ve used Venntell data to identify and arrest immigrants. The legal theory is that because the data is “commercially available,” no warrant is needed, a theory that hasn’t been tested in court [6][10].

The Government Surveillance Reform Act would close this loophole. Neither Johnson’s bill nor the Higgins proposal touches it. If Congress passes a clean reauthorization, the FBI keeps buying your phone’s location from a broker instead of getting a warrant from a judge.

The Numbers That Should Scare Congress

The FBI’s own reporting, incomplete as it is, tells the story.

• FBI queries of Americans’ data under Section 702 rose 35% in 2025 [8]
• Only 28% of FBI queries returned any 702-acquired information at all. Seven out of ten searches of Americans’ data came back empty [8]
• Brady searches (queries for exculpatory evidence in criminal cases) jumped tenfold to 1,083 [9]
• Section 215 identifiers surged 324% to 268,000: “the highest it’s ever been for an authority that literally doesn’t exist anymore,” per Goitein [9]
• An unknown number of searches went untracked entirely through the “filtering tools” the FISA Court flagged [5][8]

A 72% miss rate on a warrantless search program is a fishing expedition. Adding untracked searches on top makes it impossible to know the actual scope of surveillance. And Congress is about to renew it without fixing any of this.

What Happens in the Next 21 Days

Three scenarios:

Scenario 1: Clean reauthorization passes. Johnson’s bill (minus CBDC ban) or the Higgins proposal clears both chambers. Section 702 gets extended for two to three years. No warrant requirement. No data broker ban. No change to the querying tools the FISA Court already found are being abused. This is the most likely outcome.

Scenario 2: Another temporary extension. Congress can’t agree, so they pass another 45-day or 90-day punt. This would be the fourth temporary extension in 2026. The surveillance continues. The debate restarts in August.

Scenario 3: Section 702 sunsets. Congress fails to act and the authority lapses. Existing surveillance orders would remain in effect through their natural expiration (up to a year), but no new certifications could be issued. Intelligence officials have called this scenario catastrophic. Privacy advocates call it leverage [2][3].

What won’t happen: a warrant requirement. The votes aren’t there. The 42 Democrats who crossed the aisle in April aren’t coming back, and Republican leadership has no interest in restricting the FBI’s search authority while simultaneously expanding its immigration enforcement powers [7].

What You Can Do

• Call your senators. The Senate hasn’t voted yet. Tell them you want a warrant requirement for searching Americans’ data and a ban on data broker purchases. 5 Calls has a script ready.
• Name the bill. Ask specifically about the Government Surveillance Reform Act. If your senator hasn’t cosponsored it, ask why.
• Demand the opinion. The FISA Court opinion should be declassified before any vote. Sean Vitka of Demand Progress put it clearly: “If the government fails to declassify this opinion, it would be concrete proof that the government is hiding information from Congress before a critical vote on whether to continue the program or reform it.” [9]
• Assume you’re in the database. Use end-to-end encrypted messaging (Signal, not iMessage). Use a VPN. Don’t assume “commercially available” data stays commercial.

The Bottom Line

A secret court found the government is breaking its own surveillance rules. The opinion is still classified. The FBI is buying your location data without a warrant and refused to stop when asked. Queries of Americans’ data are up 35% with a 72% miss rate. An unknown number of searches go entirely untracked.

Congress has two bills ready. Both would renew all of this. The one bill that would fix it doesn’t have a floor vote.

Twenty-one days.

Sources

1. CNBC: FISA Section 702: Congress passes short-term surveillance program extension just before deadline (April 30, 2026)
2. Brennan Center for Justice: Section 702 of FISA: 2026 Resource Page
3. EPIC: FISA Section 702: Reform or Sunset campaign page
4. Sen. Wyden: Government Surveillance Reform Act press release (March 2026)
5. Breitbart: DNI Tulsi Gabbard Working to Declassify Controversial FISA Court Opinion (May 21, 2026)
6. TechCrunch: FBI is buying location data to track US citizens, director confirms (March 18, 2026)
7. Axios: House passes FISA reauthorization, Senate roadblock awaits (April 29, 2026)
8. State of Surveillance: Congress Returns With 32 Days to Fix America’s Most Powerful Surveillance Law (May 11, 2026)
9. The American Prospect: Surveillance Reform Hinges on How Congress Defines ‘Query’ (May 11, 2026)
10. NPR: Your data is everywhere. The government is buying it without a warrant (March 25, 2026)