The FISA Court Caught Spy Agencies Building Workarounds

A classified ruling found the FBI, CIA, and NSA using 'filtering tools' to dodge restrictions on searching Americans' data. The DOJ wants to keep using them. Wyden wants you to read the opinion. The declassification window closes tomorrow.

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TL;DR: On March 17, 2026, the Foreign Intelligence Surveillance Court approved the annual recertification of Section 702 , then dropped a bomb. The court found that the FBI, CIA, and NSA have been using "filtering tools" that effectively circumvent rules designed to protect Americans from warrantless searches. The judge ordered agencies to re-engineer the tools. The Trump DOJ is appealing. Sen. Ron Wyden negotiated a 15-day declassification window as part of the 45-day FISA extension deal , that window closes around May 15. If the opinion goes public, it could reshape the reform debate with 29 days left before the June 12 deadline. If it doesn't, it's proof the government is hiding the truth about how it spies on Americans.

What the Court Actually Found

Here's the short version: spy agencies built tools that technically follow the rules while functionally breaking them.

Section 702 lets the NSA collect communications of foreign targets abroad without a warrant. When Americans talk to those targets, their messages get swept up too. That's the "incidental collection" the government says is unavoidable. The rules say agencies need special justification to search that data for Americans' information , FBI agents need a supervisor or attorney to approve each query, and the search must be "reasonably likely" to return foreign intelligence information [1][2].

The March 17 FISC opinion found something the government didn't want anyone to see: agencies built filtering systems that pre-compile lists of individuals communicating with foreign targets, then let analysts select from those lists to examine specific communications [1]. The court said when a filtering system is used to look for information on Americans, it counts as a query , meaning it's subject to all the restrictions agencies were dodging [2].

This isn't just the FBI. The court found the filtering tool problem exists "across the intelligence community" [1]. The NSA, CIA, and FBI all built their own versions. When the FBI discontinued one particular tool in 2024 after getting caught, it quietly started using "another tool" with the same functionality [2]. The workaround had a workaround.

The Fight Over What "Query" Means

This is where it gets technical. And where the government's lawyers earn their paychecks.

Current law doesn't precisely define what counts as a "query" of Section 702 data. That vagueness isn't an accident. It lets the FBI argue that running Americans' names through a pre-filtered list isn't really a "search" , it's just... processing. Narrowing. Refining. Anything but the word that triggers oversight [1].

Elizabeth Goitein at the Brennan Center for Justice put it plainly: "Congress needs to redefine 'query' in order to make sure that we're not seeing these creative interpretations by the FBI" [1]. The FISA Court appears to agree. The March ruling ordered agencies to "re-engineer the filter tools to comply with rules for queries for Americans' information" [2].

The DOJ's response? Appeal the ruling. On April 16, the Trump administration asked the FISA Court of Review to overturn the restriction [3]. The government's argument: these tools are essential to national security. The counter-argument: that's what they always say when they get caught.

The Numbers That Should Scare You

While Congress debates definitions, the surveillance apparatus is accelerating.

Brady queries , searches the FBI runs to comply with prosecutors' obligation to provide exculpatory evidence to criminal defendants , jumped tenfold in a single year. From 113 in 2024 to 1,083 in 2025 [1]. Before that, it was 17 in 2023. Goitein's take: "Either the FBI has become much more diligent about honoring the rights of criminal defendants, or these Brady searches are being misused. You can guess which explanation I think is more likely" [1].

Then there's Section 215. That bulk metadata authority officially expired in March 2020. Dead. Gone. Except it's not , a grandfather clause lets ongoing investigations continue. In 2025, unique identifiers under Section 215 spiked 324% to over 268,000 [1]. Goitein called it "the highest it's ever been for an authority that literally doesn't exist anymore" [1].

Something is very wrong there. Her words, not ours. But we agree.

The Declassification Clock Is Ticking

Here's why this matters right now, today.

When Congress was negotiating the 45-day FISA extension on April 30, Sen. Ron Wyden cut a deal. He'd support the extension if Senate Intelligence Committee leaders Tom Cotton (R-AR) and Mark Warner (D-VA) sent a letter to the Director of National Intelligence and Attorney General requesting declassification of the March 17 opinion [4]. They agreed. The letter asked for the review to be completed within 15 days [4].

That 15-day window closes around May 15. Tomorrow.

If the opinion drops, the public will see exactly how spy agencies built workarounds to search Americans' data without proper authorization. That could be politically radioactive with 29 days to the June 12 deadline.

If it doesn't drop, that tells you something too. Sean Vitka, executive director of Demand Progress, didn't mince words: "If they fail to declassify this opinion in the window that's been requested, it would be concrete proof that the government is hiding information from Congress" [1].

The Pattern: Get Caught, Build Another Workaround

This isn't the first time. The FBI has a documented habit of finding creative ways around surveillance restrictions, getting caught by the FISA Court, promising to fix it, then building something functionally identical under a different name.

In 2022, it came out that FBI agents ran over 200,000 warrantless searches of Americans' information in a single year [5]. The targets included Black Lives Matter protesters, government officials, journalists, political commentators, and 19,000 congressional campaign donors [5]. Congress passed the Reforming Intelligence and Securing America Act (RISAA) in April 2024, which was supposed to fix this. It didn't. RISAA codified existing FBI protocols instead of implementing meaningful reforms [1].

In 2025, FBI queries of Americans' data under Section 702 rose another 35% [6]. The filtering tools ruling shows the FBI found new ways to search Americans' data while technically staying within RISAA's weak guardrails. The tool Congress built to cage the surveillance state just taught it to pick locks.

29 Days Left. What Happens Next?

The 45-day extension expires June 12. Here's where things stand.

The reform camp , led by Wyden in the Senate and a bipartisan coalition in the House , wants a warrant requirement for U.S. person queries and a proper definition of "query" that closes the filtering tool loophole. Privacy groups including the Brennan Center, EPIC, EFF, and the ACLU are backing them [5].

The reauthorization camp , led by Cotton and backed by the intelligence community , wants a clean multi-year extension with no warrant requirement. They argue the existing rules are sufficient and that warrants would "go dark" on critical intelligence [4].

The DOJ's appeal of the filtering tools ruling is a wild card. If the FISA Court of Review upholds the March opinion, agencies will be forced to re-engineer their tools regardless of what Congress does. If the appeal succeeds, the workarounds stay in place , and Congress becomes the last line of defense.

Which brings us back to that classified opinion. If the American public reads what the FISA Court found , that its own intelligence agencies built tools specifically designed to circumvent privacy protections , the political calculus changes. That's exactly why the DOJ doesn't want it declassified. And exactly why it needs to be.

What You Can Do

Section 702 reform is one of the rare surveillance issues where public pressure actually works. The warrant requirement amendment came within a handful of votes in 2024. Here's how to make yourself heard before June 12:

  • Call your senators. 5 Calls has a script ready. Tell them you want a warrant requirement for U.S. person queries and a statutory definition of "query" that covers filtering tools.
  • Contact your House rep. The House already passed a clean extension without reforms. That needs to change. EPIC's campaign page makes it easy.
  • Watch for the declassified opinion. If it drops, read it. Share it. The government's own court found its agencies cheating. That's not speculation , it's a judicial finding.
  • Encrypt everything. End-to-end encrypted messaging (Signal, not iMessage) means even if your communications get swept up in Section 702 collection, the content stays private. Our FISA explainer has the full rundown.

Sources

  1. The American Prospect , Surveillance Reform Hinges on How Congress Defines "Query" (May 11, 2026)
  2. Brennan Center for Justice , Section 702 FISA 2026 Resource Page
  3. Daily Caller / CDN , DOJ Reportedly Appealing Ruling That Limits Feds' Ability to Use Spy Tool (April 16, 2026)
  4. Nextgov , House Passes 45-Day FISA Extension After Senators Secure Declassification Deal (April 30, 2026)
  5. Brennan Center for Justice , Section 702 of the Foreign Intelligence Surveillance Act
  6. Nextgov , FBI Queries of Americans' Data Under FISA 702 Rose 35% in 2025 (March 2026)