Congress has a chance to make spying on Americans harder
Congress will decide whether to reauthorize the George W. Bush-era surveillance program with additional privacy protections, making warrantless spying on private Americans’ communications more difficult.
As Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires on April 20th, 2026, Congress will decide whether to reauthorize the law, which civic groups say the government uses for mass surveillance of Americans without a warrant.
Democratic Senator Dick Durbin and Republican Senator Mike Lee reintroduced the Security and Freedom Enhancement (SAFE) Act, a bill that would reauthorize Section 702 for two years while imposing privacy protections.
The bill would require government agencies to obtain a FISA Title I order or a warrant before accessing the content of Americans’ communications collected under Section 702.
Bill proponents say it would also “close the data broker loophole.” Government agencies can now purchase Americans’ sensitive data from private brokers without a warrant, rather than subpoenaing.
Critics say such practice bypasses the Fourth Amendment, which protects against unreasonable searches and seizures by the government.
The Federal Bureau of Investigation’s (FBI) director, Kash Patel, admitted in the Senate intelligence committee on March 17th that the agency has started buying location data on Americans from private brokers.
Only 6% of Americans say it is always acceptable for the government to monitor their phone calls and private social media messages. Despite widespread concerns about surveillance, the White House is reportedly backing a clear extension of Section 702.
How does FISA 702 enable surveillance?
Section 702 was enacted in 2008 as a temporary measure that enabled the Intelligence Community to collect foreign intelligence information on national security threats without a warrant.
Technically, the law permits targeting only “non-US persons” who are located outside the US and surveilling their phone calls, text messages, emails, and other electronic communications.
Although Section 702 does not explicitly provide for the surveillance of US citizens, the statute creates an environment in which the communications of US citizens can be both collected and reviewed.
Jamie E. Wright
Jamie E. Wright, a trial attorney and Founder at The Wright Law Firm, says that when communications occur between foreign targets and US residents, intelligence agencies collect a significant amount of private communications between those parties.
These communications are retained in searchable databases available to agencies such as the FBI.
Wright says intelligence investigators may use an individual’s name, phone number, or email address to search the database and access the substance of their communications. In this way, they can access the content of a US citizen's private communication.
“Although Section 702 does not explicitly provide for the surveillance of US citizens, the statute creates an environment in which the communications of US citizens can be both collected and reviewed,” she tells Cybernews.
The law has been widely criticized by civil society groups. According to the Brennan Center for Justice, agencies conduct over 200,000 warrantless “backdoor” searches each year to monitor Americans’ private phone calls, text messages, and emails.
The FBI has reportedly conducted warrantless searches of Section 702-acquired information to access communications of Black Lives Matter protestors, journalists, political commentators, and campaign donors, the Brennan Center for Justice states.
Can the SAFE Act prevent warrantless surveillance?
Wright says the SAFE Act provides a much-needed corrective action, as it neither “abolishes Section 702 nor strips the intelligence community of the authority to track foreign threats.”
Essentially, she explains, the Act requires the government to obtain a warrant before examining the content of a US citizens’ communications.
“Although the passage of the SAFE Act will certainly not conclude the debate concerning surveillance, it will help to narrow the chasm that presently exists between the practices of the nation’s intelligence community and constitutional rights,” Wright says.
Despite hopes that the SAFE Act would restore the Fourth Amendment, it remains to be seen whether its passage would result in Americans being surveilled less.
Andrellos Mitchell, a Washington, DC-based attorney, notes that state and local law enforcement agencies already conduct sophisticated surveillance and criminal investigations using warrant-based tools that comply with the Fourth Amendment.
In many cases, they can achieve the same investigative outcomes as federal authorities without relying on foreign intelligence authorities like Section 702.
Mitchell tells Cybernews, “That raises a real concern: if the same results can be obtained through constitutionally grounded processes, the continued use of 702 risks creating unnecessary exposure to privacy and civil liberties violations.”
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