TL;DR: Senators Dick Durbin (D-IL) and Mike Lee (R-UT) are reintroducing the SAFE Act on February 13, 2026, 67 days before Section 702 of FISA expires. The bill would require a warrant before the government reads Americans' communications swept up by NSA surveillance. It would also close the data broker loophole, narrow the expanded definition of "communications service providers" that forces data centers to cooperate with surveillance, and strengthen FISA Court oversight. Last time around, a warrant requirement lost by a single vote: 212-212 in the House. The fight is back.
Section 702 in 30 Seconds
Section 702 lets the NSA collect communications from foreign targets (emails, texts, phone calls) without individual warrants. The catch: American citizens' conversations get swept up too, every time they communicate with someone overseas. The FBI then searches that database using Americans' names, email addresses, and phone numbers. In recent years, the FBI ran over 200,000 warrantless searches of Americans' communications annually [1].
Congress last renewed Section 702 on April 20, 2024, via the Reforming Intelligence and Securing America Act (RISAA). That law expires on April 19, 2026. If Congress does nothing, the surveillance authority dies [2].
What the SAFE Act Would Change
1. Warrant Requirement for Americans' Communications
The core provision: intelligence agencies would need a FISA court order or warrant before accessing the contents of Americans' communications collected under 702. Not before running the query, before reading what it returns [1][3].
Key detail: less than 2% of U.S. person queries actually return results. So the warrant requirement would apply to a narrow set of cases: the ones where the government found something and wants to read it. Exceptions exist for emergencies, consent, and cybersecurity searches [3].
This is the provision that lost 212-212 in the House in April 2024. One vote. Speaker Mike Johnson broke the tie against the warrant requirement [4].
2. Closes the Data Broker Loophole
Right now, the government can buy Americans' location data, web browsing history, and other sensitive information from commercial data brokers, no warrant needed. Why bother with 702 when you can buy the data on the open market? The SAFE Act would require strict minimization procedures for purchased datasets that can't be pre-screened to exclude U.S. person data [3].
3. Narrows the "Communications Service Provider" Definition
RISAA's most controversial provision expanded who can be compelled to help with surveillance. The old law applied to telecom companies and email providers. The new definition could reach data centers, cloud providers, and potentially anyone who touches communications infrastructure [2][5].
Sen. Ron Wyden called this "the biggest expansion of domestic surveillance since the Patriot Act." The SAFE Act would clarify and narrow that definition [2].
4. Strengthens FISA Court Oversight
The bill creates a presumption that independent amici curiae (privacy advocates allowed to argue before the secret FISA Court) should participate in sensitive matters. It also increases their access to classified information. Right now, the court hears almost exclusively from the government [3].
Why This Time Might Be Different
The politics have shifted since 2024. Three things changed:
ICE is the new face of 702 abuse. In 2024, the debate was abstract: FBI counterterrorism analysts querying databases. In 2026, the debate is about ICE agents using 702 data for immigration raids. Sen. Durbin told Nextgov: "We're talking about situations in Chicago and Minneapolis, where warrantless searches lead to helicopters landing on the roof" of homes [5].
The White House is scrambling. On February 11, the White House convened a Situation Room meeting with CIA Director John Ratcliffe, DNI Tulsi Gabbard, and Republican lawmakers including Jim Jordan and Rick Crawford to discuss the 702 renewal path. An official confirmed "the president, several of his top advisers, and lawmakers will be participating in a discussion about FISA Section 702 renewal" [2].
Gabbard's own words haunt the administration. Before becoming DNI, Tulsi Gabbard said warrants "should generally be required" for U.S. person queries. Now she's the administration's point person on saving the warrantless version [5].
The bipartisan coalition is broad: co-sponsors include Democrats Hirono, Wyden, Warren, Markey, Sanders, Baldwin, and Heinrich, plus Republicans Daines and Lummis [1].
The Classified Hearing That Went Sideways
On February 9, a classified Senate hearing on 702 renewal erupted in frustration. Intelligence officials refused to state whether the Trump administration even wants Section 702 renewed. Senators from both parties left angry [6].
That silence is strategic. The administration wants 702 renewed but can't publicly embrace it without alienating the libertarian right that views 702 as government overreach. So officials said nothing, and lawmakers had to guess.
The SAFE Act forces the issue. If it passes, renewal comes with a warrant requirement. If it fails, the debate shifts to whether 702 gets renewed at all, or whether Congress lets America's most powerful surveillance tool expire on April 19.
67 Days
That's how long Congress has to decide. Here's the timeline:
- February 9: Classified Senate hearing, officials refuse to state admin position
- February 11: White House Situation Room meeting with Ratcliffe, Gabbard, Jordan, Crawford
- February 13: SAFE Act formally introduced
- Coming weeks: House Judiciary and Intelligence Committee markups expected
- April 19, 2026: Section 702 sunsets
If the warrant provision lost by one vote in 2024, and the politics have shifted toward more skepticism of surveillance, the SAFE Act has a real chance. But the intelligence community will fight it hard, and the White House Situation Room meeting signals the administration is mobilizing against meaningful reform.
67 days. One vote. The same fight, with higher stakes.
What You Can Do
Contact Your Senators
The SAFE Act needs Senate co-sponsors. Tell your senators you support the warrant requirement. The bill is bipartisan: both conservative and progressive arguments apply. Find your senator.
Contact Your Rep
The House is where the warrant requirement lost 212-212. One more vote changes everything. Find your representative.
Use Encrypted Communications
Section 702 targets unencrypted communications. Use Signal for messaging, ProtonMail for email, and enable encryption everywhere you can. It won't stop collection, but it limits what the government can read.
Follow the Countdown
EPIC's 702 campaign page tracks legislative developments. The EFF's action center makes it easy to send messages to lawmakers.
References
- Senate Judiciary Committee - Durbin, Lee Introduce Bipartisan SAFE Act to Reform FISA Section 702 (February 2026)
- Nextgov/FCW - Senators to revive reform effort for controversial spying law (February 11, 2026)
- Senate Judiciary Committee - The Security and Freedom Enhancement (SAFE) Act Summary
- Penn Center for Ethics and the Rule of Law - After a Bruising Battle, FISA Section 702 Lives On
- Nextgov/FCW - Domestic surveillance fears loom over Congress debate to renew spying power (February 2026)
- CNN - FISA Section 702 classified hearing erupted in frustration (February 9, 2026)
- EPIC - FISA Section 702: Reform or Sunset