Five days from publication, a federal surveillance authority that the Foreign Intelligence Surveillance Court found the FBI used in a noncompliant manner 278,000 times against Americans is scheduled to expire. The Senate adjourned at 3:49 a.m. Thursday with Majority Leader John Thune having filed cloture on a three-year clean extension introduced by Sen. Tom Cotton, returning to the floor at 3:00 p.m. Monday. The deadline is April 30.
Section 702 of the Foreign Intelligence Surveillance Act authorizes the government to collect the phone calls, emails, and text messages of foreigners located outside the United States without a warrant. The Foreign Intelligence Surveillance Court approves broad categories of collection once a year; the FBI, NSA, and CIA then serve directives on American companies such as Google, Verizon, and AT&T, which face fines of $250,000 per day for noncompliance. In 2022 the government targeted 246,073 non-U.S. persons. Collection runs into the billions of communications annually.
The part of the program that reaches Americans is called incidental collection. When a targeted foreigner communicates with an American, the American’s side of the conversation goes into the same database. Federal agencies then query that database using American names, email addresses, and phone numbers — searches the FBI conducts without a warrant. In 2021 the FBI conducted 3.4 million U.S.-person queries, later revised to 2.97 million.
Between 2020 and early 2022, FBI personnel conducted 278,000 of those queries in a manner the Department of Justice determined violated legal standards. The Foreign Intelligence Surveillance Court characterized the failures as “persistent and widespread” in an April 2022 opinion by Judge Rudolph Contreras, declassified in May 2023. The queries targeted Black Lives Matter protesters, January 6 defendants, journalists, crime victims, and 19,000 donors to a single congressional campaign. DOJ reviewers later found that only 8 of those 19,000 identifiers had any tie to foreign influence activities.
One of the members of Congress improperly queried was Rep. Darin LaHood, an Illinois Republican who sat on the House Intelligence Committee. At a March 9, 2023 public hearing, LaHood said he had reviewed the classified summary and was the member of Congress “wrongfully queried multiple times solely by his name.” A separately declassified FISC opinion released that July revealed the FBI had also improperly queried a sitting U.S. Senator, a state senator, and a state judge. From 2018 through 2024, a narrow statutory provision required a warrant for U.S.-person queries in certain criminal investigations; the FBI conducted dozens of such searches and never once sought a warrant.
The 2024 Reforming Intelligence and Securing America Act produced reported declines in U.S.-person queries. The numbers were incomplete. In August 2024, DOJ overseers discovered the FBI had been running a separate tool — the “advanced filter function” — that bypassed RISAA’s logging, attorney-approval, and audit requirements. The FBI did not disable it until early 2025. On April 12, 2026, the Foreign Intelligence Surveillance Court released a new opinion finding that the filtering-tool problem extends across the intelligence community and is ongoing. A subsequent DOJ letter showed FBI U.S.-person queries rose to 7,413 in 2025 from a reported 5,518 in 2024 — and the 2024 figure was undercounted because the FBI failed to track all queries as the statute requires.
The FISA authority that federal agents abused in the 2016 investigation of Trump campaign adviser Carter Page was not Section 702. Page was surveilled under FISA Title I, a separate authority that requires individualized probable-cause warrants naming an American as a suspected agent of a foreign power. DOJ Inspector General Michael Horowitz’s December 2019 report identified 17 errors and omissions across the four Title I applications against Page. Those failures did not involve Section 702.
Trump’s public position on 702 has shifted. In April 2024 he urged Republicans on Truth Social to kill FISA outright. In April 2026 he posted that “Our Military Patriots desperately need FISA 702” and called on Republicans to unify behind reauthorization. CIA Director John Ratcliffe, White House adviser Stephen Miller, and FBI Director Kash Patel are leading the administration push. Rep. Jamie Raskin voted for the 2024 reauthorization; in a March 2026 letter to colleagues he wrote the earlier safeguards “have been badly eroded” under the Trump administration. Position on 702 tracks who controls the executive branch.
On April 8, 2026, roughly 40 former national security officials — including former FBI Director Christopher Wray, former CIA Director John Brennan, and former Director of National Intelligence James Clapper — sent Congress a letter urging clean reauthorization. Several oversaw the agencies during the period covered by the 278,000 noncompliant queries. The Privacy and Civil Liberties Oversight Board, the statutory watchdog over Section 702, lost three of its members to firings in August 2025.
Federal courts outside the FISA system have split with the FISC on whether the queries are constitutional. On December 2, 2024, Judge LaShann DeArcy Hall of the U.S. District Court for the Eastern District of New York held in United States v. Hasbajrami that the FBI’s warrantless searches of Section 702 data violated the Fourth Amendment — the first federal court opinion to require a warrant for 702 queries. The Second Circuit had ruled in 2019 that queries are “separate Fourth Amendment events” from the initial collection. The FISC has continued to hold the opposite position.
The Fourth Amendment reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The text was a response to a specific practice. In February 1761, lawyer James Otis argued for five hours before the Massachusetts Superior Court against writs of assistance — general warrants issued by the British Crown that named no particular place, no particular goods, and no particular suspect, and that expired only when the monarch died. Otis lost; John Adams sat in the courtroom taking notes and later wrote that with Otis’s argument “the child Independence was born.”
Adams drafted Article 14 of the 1780 Massachusetts Declaration of Rights incorporating Otis’s principles. Nine years later James Madison introduced the language that became the Fourth Amendment. In Boyd v. United States, 116 U.S. 616 (1886), the Supreme Court cited the English general-warrant cases Wilkes v. Wood and Entick v. Carrington as guides to what the framers meant.
Four reform bills sit in the current Congress. The SAFE Act, sponsored by Sen. Mike Lee (R-Utah) and Sen. Dick Durbin (D-Ill.), would require a warrant for U.S.-person queries with emergency, consent, and cybersecurity exceptions. The Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act would each impose warrant requirements. Sen. Rand Paul’s Fourth Amendment Is Not For Sale Act would close the data-broker loophole that lets federal agencies purchase Americans’ location data without a court order.
None has reached a floor vote. In the 2024 RISAA debate a warrant amendment failed in the House on a 212–212 tie. On April 15, 2026, the House Rules Committee advanced an 18-month clean reauthorization under a closed rule barring amendments. Two nights later that bill failed on a 197–228 procedural vote after 20 Republicans voted no, and a substitute five-year bill with limited reforms failed within hours. At 2:09 a.m. on April 18 the House passed a 10-day extension by unanimous consent, pushing the deadline to April 30. A House Republican section-by-section draft circulating April 23 restates Fourth Amendment protections but does not include a warrant requirement; House Freedom Caucus members have said the language is unsatisfactory. The Senate’s Cotton bill is a clean three-year extension, longer than the 18 months Trump requested, with no warrant provision.
A lapse on April 30 would not end Section 702 collection. Annual FISC certifications remain valid until their expiration dates even if the underlying statute sunsets; the current certification, renewed by the FISC on March 17, 2025, runs through March 2027. Senate Judiciary Chair Dick Durbin said on the Senate floor April 18: “There is no emergency excusing Congress from getting this right.” A statutory lapse would change the government’s ability to issue new directives after the certification expires and create the legal uncertainty that in 2008 prompted some service providers to reduce cooperation, though providers face $250,000-per-day fines for refusing valid directives.
The text of the Fourth Amendment requires probable cause, an oath, and a particular description of what is to be searched. The FBI conducted 278,000 queries of Americans’ communications between 2020 and early 2022 that the Foreign Intelligence Surveillance Court found violated the standards Congress and the court itself had set. One federal district court has ruled the queries unconstitutional. The Senate returns Monday afternoon with four days until the statute lapses.
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