Privacy and Surveillance Experts and Bipartisan Lawmakers Warn of Risks in FISA Section 702 Overreach

Washington, D.C. — Privacy advocates, civil liberties experts, and members of the U.S. House Judiciary Committee, spanning party lines, have issued urgent warnings that the Federal Bureau of Investigation’s (FBI) warrantless access to Americans’ communications under Section 702 of the Foreign Intelligence Surveillance Act (FISA) risks transforming a foreign intelligence tool into a mechanism for domestic surveillance. During a Thursday hearing, witnesses and legislators emphasized that without meaningful judicial checks, the program could become a vehicle for unchecked executive power, particularly amid a polarized political landscape and aggressive law enforcement directives.

Background: Section 702 and the "Backdoor Search" Controversy

Enacted in 2008 as a foreign intelligence surveillance tool, Section 702 allows the government to compel U.S. tech and communications companies to turn over communications of non-U.S. persons believed to be overseas, without individualized court orders. However, the program inevitably captures data involving U.S. persons—including emails, texts, and calls—that communicate with foreign contacts. These communications are stored in government databases maintained by the National Security Agency (NSA) and shared with the FBI, CIA, and National Counterterrorism Center (NCTC).

A critical practice, described by civil liberties experts as a "backdoor search," occurs when agents query these databases using Americans’ personal identifiers (names, phone numbers, emails) to identify matching communications—all without judicial oversight. In 2023, the FBI conducted over 57,000 such searches, though critics argue the true figure is higher due to redefinitions of "queries" by agency officials.

Heard: Bipartisan Concerns Over Constitutional Violations

Testifying before the House Judiciary Committee, four witnesses—including former U.S. Attorney Brett Tolman, conservative litigator Gene Schaerr, civil liberties advocate Liza Goitein, and tech-policy analyst James Czerniawski—united in urging Congress to impose a probable-cause warrant requirement on Section 702 searches or allow the authority to expire in April 2026, when it next faces reauthorization.

• Brett Tolman (Former U.S. Attorney): "Section 702 was sold as a tool to target foreign adversaries, but we were lied to. For decades, it has functioned as a government ‘permission slip for warrantless spying on Americans.’"

• Liza Goitein (Brennan Center for Justice): "Section 702 has drifted from its original intent. It is now a ‘rich source of warrantless access to Americans’ communications,’ with agencies conducting ‘backdoor searches’ that bypass the Fourth Amendment."

• Gene Schaerr (Conservative Constitutional Litigator): "An independent Article III court—with its duty to demand probable cause—is irreplaceable. FBI supervisors’ approval is no substitute for judicial scrutiny."

Reforms Under Fire: The RISAA 2024 Framework

In 2024, Congress passed the Reforming Intelligence and Securing America Act (RISAA), which reauthorized Section 702 and introduced safeguards: mandatory supervisor approval, written justifications, and audit-ready logging. However, witnesses and lawmakers deemed these measures insufficient.

• Limitations of "Self-Policing": Critics argue that FBI managers approving queries—rather than independent judges—fosters a "national security exception" mentality, where the Fourth Amendment is viewed as inapplicable.

• Expansive Data Broker Loopholes: The law expanded "electronic communication service providers" to include landlords and commercial entities, forcing tens of millions of Americans’ communications to be shared without warrant.

• Vague Definitions: The term "query" was redefined without congressional oversight, rendering transparency reports unreliable.

Partisan Alignment: A Rare Bipartisan Stand Against Unchecked Surveillance

The hearing highlighted an unusual coalition opposing Section 702, bridging ideological divides:

• Liberal Democrats: Echoed complaints over the administration’s weaponization of domestic intelligence, with Representative Pramila Jayapal (D-WA) stating, "The Constitution does not change with the White House."

• Conservative Republicans: Urged judicial accountability, with Representative Andy Biggs (R-AZ) questioning whether supervisor sign-offs compare to "an independent judge demanding probable cause."

Conclusion: The Need for Constitutional Checks

Experts and legislators converged on a central demand: replace warrantless "backdoor searches" with a Fourth Amendment-compliant model requiring individualized warrants. As Jim Jordan (R-OH), committee chairman, put it: "The tried and true method—getting a probable-cause warrant from an independent branch—is the answer."

With Section 702 set to sunset in 2026, the hearing signals a pivotal moment for Congress to decide: Will the program remain a tool of unchecked surveillance, or will it adhere to constitutional constraints as a legitimate foreign intelligence measure?

Key Takeaway: The hearings underscore a consensus that Section 702’s current framework threatens civil liberties and democratic accountability, demanding urgent reforms to protect Americans’ privacy.