Throughout April, Congress faced a deadline everyone knew was coming. Section 702 of the Foreign Intelligence Surveillance Act (FISA), a spy tool that enables our intelligence agencies to collect information on non-U.S. persons, was set to expire. Despite years of documented abuses and a growing bipartisan demand for reform, talks stalled, and Congress initially opted for a 10-day extension to work out their differences. After once again reaching an impasse, despite the grumblings of the deep staters, a last-minute agreement for another short-term reauthorization was reached for another 45-day extension, and life in America will go on.
The House passed a measure to reauthorize Section 702 of FISA for three years without meaningful changes. However, Senate Majority Leader John Thune indicated this measure was “dead on arrival” in the Senate because of an attached ban on central bank digital currency. His preference is for a 45-day clean extension, and a three-week extension by Senator Ron Wyden (D-OR) failed on unanimous consent due to an objection from Senator Tom Cotton (R-AR) to an added provision to declassify a recent FISC ruling.
While the intelligence community might argue that this uncertainty threatens national security, the reality is that the precarious position they find themselves in was entirely avoidable. Rather than taking the bipartisan calls for reform seriously, they played chicken and got burned.
This fight has offered a rare, final chance for redemption, a chance to finally secure common-sense reforms that organizations across the political spectrum have spent years fighting for.
Why FISA Isn’t Serving Our National Interest
Section 702 is one of the most powerful surveillance authorities the federal government possesses, empowering it to collect the communications of non-U.S. persons located abroad. In the process, it also incidentally collects billions of Americans’ communications, and it has become a backdoor for warrantless surveillance of Americans. The FBI has routinely queried this massive database on Americans, all without ever seeking a warrant. When the public learned that the program was abused for everything from vetting romantic matches to spying on protesters and sitting members of Congress, the intelligence agencies shouldn’t be surprised that “trust us” isn’t a viable policy anymore.
For years, critics and politicians across the political spectrum have raised serious concerns over the misuse of Section 702. Rampant, repeated violations and a lack of meaningful accountability have eroded trust in a key institution charged with keeping the country safe. Considering the stakes and value of the program, a significant portion of the president’s daily briefing contains information collected via 702; the fact that Congress and the intelligence community allowed this to come down to the wire reflects a sense of complacency.
The 10-day extension didn’t have to happen, and it’s disappointing that another short-term reauthorization of 45 days was needed. Lawmakers had ample time to debate potential reforms, negotiate compromises, and pass something to keep the program’s lights on. Hopefully, this latest extension provides the necessary space to move beyond the false choice between subjecting Americans to total surveillance or total blindness for our intelligence agencies.
Priorities For Reform
First and foremost, Congress needs to close the backdoor search loophole. If the intelligence community would like to search an American’s communications, get a warrant. In many reform camp legislative proposals, there is a litany of carve-outs to allow for defensive queries, identify victims, and exempt metadata from the warrant requirement, all to ensure that, in exigent circumstances, these agencies can operate with the needed flexibility.
Second, the government shouldn’t be able to buy its way out of Fourth Amendment scrutiny by purchasing information on Americans from data brokers. Ending the data broker loophole is critical. Otherwise, we are effectively turning every consumer’s smartphone into a tracking device for the state.
Third, we must fix the definition of an electronic communications service provider. During the last FISA reauthorization fight, this definition was expanded so broadly that it could potentially deputize a wide range of businesses and organizations into the national security apparatus for simply providing access to communication infrastructure. This approach, where “everyone is a spy,” is a massive overreach that needs to be reined in.
There is also a broader economic consideration. As the administration seeks to export the American AI tech stack globally, our domestic surveillance practices matter. If we fail to incorporate serious reforms, we undermine the faith other nations place in American technology. We will hinder our ability to win the AI race if our tech stack is viewed as a Trojan horse for our intelligence agencies to conduct surveillance.
This isn’t about blinding agencies to legitimate threats. National security and civil liberties are not mutually exclusive. In fact, when the government violates Americans’ rights by ignoring the Constitution, it erodes the social contract that empowers it to operate effectively. That erosion is its own fundamental threat to national security. The administration, the intel community, and Congress have been given a second chance to stop kicking the can down the road and move toward reform.
We need a Section 702 reauthorization that respects the law as much as it protects the country. There is more than enough time to do the right thing.
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James Czerniawski is the head of Emerging Technology Policy at the Consumer Choice Center. His work has been featured in The New York Post, Newsmax, Newsweek, and more. He has testified to Congress on government surveillance issues. You can follow him on X @JamesCz19.
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