April 23, 2026
The controversial FISA 702 surveillance authority of the United States government is going to expire on April 30th. And now there is a big fight on Capitol Hill about whether the U.S. government should be allowed to continue it or if new guardrails need to be included to protect you from being caught up in government surveillance of your private communications.
So let me first back up.
What is FISA Section 702? Back in 2008, Congress enacted Section 702 of the Foreign Intelligence Surveillance Act (FISA). This section allows the U.S. government to “target” non-U.S. persons who are reasonably located outside of the United States and surveil them. And by surveil—I mean surveil. We’re talking phone calls, texts, emails, any kind of communications. Under this law, the United States government compels U.S. communications companies to turn over all those private communications belonging to their “target.” Oh, and there’s no warrant required. Instead of going to a federal judge in a federal court to get a warrant, the U.S. government goes to a specially created FISA court that only deals with FISA issues to approve the general surveillance activities of U.S. intelligence agencies on an annual basis, not on a case-by-case basis. Under 702, these U.S. communications companies must turn over that data. The U.S. government says this FISA authority to surveil these “targets” is critical to national security, to thwarting potential attacks on the homeland, and to keeping Americans safe. They say it absolutely works. Oh, and just in case you’re thinking it—because I know you are—don’t worry, the law specifically says the U.S. government cannot “target” Americans on American soil. Sounds like a win-win, right?
Well, the issue is, over the years, Americans have been surveilled by U.S. intelligence agencies through this 702 FISA program. The communications of Americans sometimes do get swept up when the government is focusing on collecting the communications of their non-American “targets.” And oftentimes that surveillance data that’s “incidentally” collected on Americans—meaning their personal texts, phone calls, emails, and private communications—gets put into a government database, which then can be searched by the government for other things, in other cases also without a warrant. Formally, the U.S. government calls that search of that database a U.S. person query. Informally, it’s called a backdoor warrantless search. And it turns out those backdoor warrantless searches are happening a lot. In fact, the FBI admitted it conducted 1.3 million U.S. person queries between December 2019 and November 2020, and almost 3.4 million U.S. person queries between December 2020 and November 2021. Now, those numbers don’t necessarily mean the government was searching the database for 3.4 million individuals. The government could have searched the same person several times or searched in multiple categories, and it all got tallied up. Of course, since 2021, the FBI’s reported number of U.S. person queries has decreased significantly, but that’s because the FBI changed the way they calculate their searches.
But wait a minute—don’t Americans have a Fourth Amendment right to protect us from unreasonable searches and seizures by the government? Yes. So how is the government getting away with these backdoor warrantless searches? Well, that’s a whole different topic. I did a whole deep dive on these backdoor warrantless searches and what the courts have said about them. It’s posted right now to my Substack, so if you’re interested, you can go and check it out now.
But I want to keep this video focused on what’s happening in Congress with this FISA 702 issue and these backdoor warrantless searches as the program is about to expire next week. So the Trump administration—just like all administrations since Obama—has wanted to keep it as is. Just extend it, no changes. And for the most part, over the years, both Democrats and Republicans have agreed to do that—just extend the program when it comes up for reauthorization. Except in 2024, Congress made some changes to some provisions around the edges of 702. But now things are different, mostly because these 702 backdoor warrantless searches are not particularly popular with the American people, mostly because of the whole right-to-privacy thing. So now that it’s up for reauthorization again, many—especially in the Republican Party—are saying, whoa, wait a minute, we need to really rein this in. In fact, last week, House Speaker Mike Johnson tried to push through a five-year extension of FISA 702 with some reforms, and it was a big block of Republicans who stopped it. Johnson then offered a clean 18-month extension of the program, and he was shot down again. Instead, Congress agreed to extend FISA 702 until April 30th. But now the question is, what kind of reforms can be made that will get enough Republicans and Democrats to approve a longer-term extension of this program the government calls a critical national security tool?
There are reforms on the table, including from some conservative Republicans and some Democrats who are really pushing to force U.S. intelligence agencies to get a warrant from a federal judge—not an authorization from the FISA court—for those U.S. person inquiries. They want to close the loophole on those backdoor searches, among several other things. But then there are others who say if the U.S. government has to go to a federal judge to get a warrant every time they want to tap that database, it’s going to slow things down, and time is everything in a national security investigation, and it could put lives at risk. They believe the existing law already has plenty of Fourth Amendment protections built in.
Now, the reality is the lawmakers who are opposed to extending the 702 FISA program without major reforms can’t really coalesce around what specific changes they want to make and also which ones can get enough votes to pass. And in the meantime, the clock is ticking to that April 30th expiration date.
