A Hybrid Role for the Court in U.S. Person Queries

Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire on June 12, 2026, unless Congress intervenes to reauthorize or extend the expiration deadline. Public debate has focused on whether the government should be allowed to conduct queries on U.S. persons using Section 702 data without a warrant (a “U.S. person” is a U.S. citizen, a lawful permanent resident, a U.S. corporation, or an association substantially composed of citizens or permanent residents).

Proponents of a warrant requirement highlight the traditional role judges play in approving search warrants under the Fourth Amendment. They refer to queries for U.S. persons as “backdoor searches” and maintain that “they provide an end-run around the legal requirements that would apply if the government sought direct access to Americans’ phone calls, emails, and text messages … Those legal requirements … involve obtaining an individualized, probable-cause order from a court.”

Those opposing a warrant requirement for U.S. person queries argue that (a) the government should not be required to obtain a warrant prior to analyzing data that has been lawfully collected, (b) Congressional reforms enacted in 2024 under the Reforming Intelligence and Securing America Act (RISAA) adequately regulate the query process, and (c) imposing a prior judicial authorization requirement would impermissibly impede important intelligence functions and thus put national security at risk.

Ultimately, whether the Fourth Amendment imposes a warrant requirement for queries involving U.S. individuals is a question for the judiciary to determine. To date, one case has ruled in favor of such a requirement, while other cases have found that a warrant is not required. For lawmakers, however, the choice should not be a binary one. There are other options for enhancing civil liberties protections through the involvement of the Foreign Intelligence Surveillance Court (FISC) that maintain this vital intelligence asset’s effectiveness.

Background on Section 702

Section 702 authorizes the government to target the communications of non-U.S. persons located outside the United States to collect certain court-approved categories of foreign intelligence information, through the compelled assistance of electronic communications service providers. According to the latest Annual Statistical Transparency Report (ASTR) published by the Office of the Director of National Intelligence (ODNI), those categories are “(1) foreign governments and related entities; (2) counterterrorism; (3) counterproliferation of weapons of mass destruction; and, as of this reporting period, (4) counternarcotics.” The government must follow targeting, minimization, and querying procedures approved each year by the FISC. The ODNI has posted the procedures for the past year in two tranches: one set for the certifications on foreign governments, counterterrorism, and counterproliferation, and the other for international counternarcotics.

The targeting procedures set forth detailed requirements for the government to follow that help ensure it properly targets non-U.S. persons outside the United States who are “expected to possess, receive, and/or [are] likely to communicate foreign intelligence information … authorized for targeting under a certification.” Once the company provides responsive information, Section 702 data can be accessed in its “raw” or “unminimized” state by only four agencies: the NSA, CIA, FBI, and the National Counterterrorism Center (NCTC). The ASTR reports that for calendar year 2025, there were 349,823 targets, and the FBI received information pertaining to roughly 3 percent of those targets.

Each agency processes, stores, analyzes, and disseminates Section 702 data in accordance with its approved minimization and querying procedures. Under the minimization procedures, agencies must minimize the acquisition, retention, and dissemination of information about U.S. persons, covering topics such as retention periods and whether and when a disseminated intelligence report may identify a U.S. person. If a piece of information collected under Section 702 has been evaluated under the minimization procedures, it is considered “minimized.”

The querying procedures govern how the government queries unminimized Section 702 data. The procedures require that “[e]ach query … must be reasonably likely to retrieve foreign intelligence information” and that the justification be documented for oversight and compliance purposes. To meet this standard, the person conducting the query must have the purpose of retrieving foreign intelligence information. In addition, they must have a specific factual basis to believe that the query is reasonably likely to retrieve foreign intelligence information. Finally, the query must be tailored so that it does not unnecessarily retrieve other information.

What is a query? Here’s how the ODNI describes it:

After initiating Section 702 collection, Intelligence Community (IC) professionals must analyze the resulting raw data (emails, telephone calls, etc.) to find foreign intelligence information. One of the primary ways they conduct this analysis … is by performing queries. In some ways, queries operate much like an Internet search engine: a trained IC professional conducts a query by entering one or more query terms and reviews the results. 

In the case of the FBI, before conducting a query using a “United States person query term”—that is, “a term that is reasonably likely to identify one or more specific United States persons”—FBI personnel must prepare “a written statement of the specific factual basis to believe that the query is reasonably likely to retrieve foreign intelligence information,” and must obtain the prior approval of an FBI supervisor or attorney. Under RISAA, the FBI is now prohibited from conducting a query that “is solely designed to find and extract evidence of criminal activity.”

Additional internal review and approval requirements accompany certain types of queries. For example, the FBI deputy director must approve the use of a “sensitive” query term—that is, “a query term reasonably believed to identify a United States elected official, an appointee of the President or a State governor, a United States political candidate, a United States political organization or a United States person prominent in such organization,  or a United States media organization or a United States person who is a member of such organization.” Additionally, an FBI attorney must approve a query term that could identify a U.S. religious organization or a prominent person in such an organization.

Compliance with the procedures implementing Section 702 is a rigorous, multilayered process that includes internal compliance offices, privacy and civil liberties officers, the ODNI, and the Department of Justice. The Privacy and Civil Liberties Oversight Board (PCLOB) described this process in detail in Part VIII of its 2023 report on Section 702, and the PCLOB staff issued an update in a 2026 report focusing on implementation of the additional safeguards required by RISAA. As highlighted in the PCLOB’s 2026 report, “RISAA now requires that DOJ review every FBI-identified U.S. person query of unminimized Section 702 information within 180 days of the query.”

Compliance incidents are identified, evaluated, remediated, and reported to the FISC and Congress. The incidents are assessed in semiannual compliance reports by the Department of Justice and the ODNI. The FISC also examines incidents in its annual certification opinions.

The FISC’s Current Role Under Section 702

Broadly speaking, the FISC plays two interrelated roles. First, it approves annual certification applications, which include targeting, minimization, and querying procedures. Second, the court reviews and responds to compliance incident reports that it receives throughout the year. The statute requires that cleared amici curiae participate in the annual certification process, as well as (at the FISC’s request) in any matter involving a “novel or significant interpretation of the law.” These “friends of the court” are to have expertise in both privacy and civil liberties and intelligence collection, and provide the court with “legal arguments that advance the protection of individual privacy and civil liberties.” 

The FISC’s certification and compliance roles come together in its certification opinions. As this digest of selected FISC opinions makes clear, in ruling on government applications under Section 702, “the FISC reviews past compliance with the procedures as part of its assessment of whether the procedures ‘are likely to be implemented in a manner consistent with statutory and Fourth Amendment requirements.’” It was the FISC’s 2022 certification opinion that highlighted the worrisome nature of the FBI’s query compliance incidents, including queries focused on “individuals arrested ‘in connection with civil unrest and protests;’’ “individuals suspected of involvement in the January 6, 2021 Capitol breach;” and “donors to a congressional campaign.” Subsequent opinions carefully tracked the progress of the FBI’s remediation efforts, including those implemented in response to RISAA.

The FISC—Neutral and Detached Magistrate or Rubber Stamp?

Any option for involving the FISC more closely in queries for U.S. persons depends to some degree on one’s view of the court. Is it truly an independent body, capable of ruling impartially on government activities, or is it a mere cog in the government’s surveillance machinery, robotically approving government applications without independent judgment?

11 experienced district court judges, who are selected for part-time duty by the chief justice of the Supreme Court, comprise the FISC. District court judges serve under Article III of the Constitution, which means they hold lifetime appointments, subject only to removal through impeachment by the House of Representatives and conviction by the Senate. Judges serve on the FISC in staggered terms of up to seven years. Each week, a different judge is on duty at the FISC, reviewing the government’s FISA applications and ruling on related matters. The FISC’s website avers that it is an Article III federal court and cites a range of cases to that effect.

The district court judges who serve on the FISC would seem to fit, by definition, into the traditional conception of the judiciary’s role under the Fourth Amendment. As stated by the Supreme Court in the 1947 case of Johnson v. United States (italics added):

The point of the Fourth Amendment which often is not grasped by zealous officers is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.

Yet for many years, the FISC labored under accusations that it was little more than a “rubber stamp” for approving government applications for a court order to conduct electronic surveillance under Title I of the FISA. For example, the court’s 2012 annual report tracking the number of government applications to the FISC showed that none of the 1,789 applications for electronic surveillance were denied (one was withdrawn and 40 were modified).

In the face of criticisms of the FISC’s high approval rate of government applications, the FISC posted its correspondence with Congress that provided detailed information about the process the FISC undergoes in reviewing and approving applications. The letter shows that, before issuing a final approval, the FISC frequently requires the government to modify its applications to address its concerns. The FISC now publishes annual reports that break out its statistics in a more granular fashion, including the number of orders modified and the number of orders denied in part. For example, in 2025, the FISC received 216 applications for Title I (electronic surveillance) and/or Title III (physical search) orders, of which it granted 133 without modification and 69 with modification, while denying 11 in part and 3 in whole.

The Traditional Fourth Amendment Role for a Neutral and Detached Magistrate

Traditionally, exercising the judicial function in the context of a law enforcement search takes the form of a judge determining in advance whether the government application meets the probable cause standard. In a landmark 1972 Supreme Court ruling on domestic security, United States v. United States District Court (commonly referred to as the Keith case), the Court stated (italics added): “The Fourth Amendment contemplates a prior judicial judgment … This judicial role accords with our basic constitutional doctrine that individual freedoms will best be preserved through a separation of powers and division of functions among the different branches and levels of Government.”

If each U.S. person query is in fact a “search” under the Fourth Amendment, then it would follow that—unless an exception applies—the judiciary should make a judgment in advance as to the validity of the government’s application. As stated at the outset of this article, the Fourth Amendment issue is ultimately for the courts to settle. The question for lawmakers is how best to strike a balance between national security priorities and the civil liberties interests at stake.

At one end of the spectrum are bills, such as the proposed Government Surveillance Reform Act, which would prohibit queries for U.S. persons unless the FISC finds that probable cause exists to believe that the subject of the query is an “agent of a foreign power.” Two helpful reference points when evaluating such proposals are Titles I and III of FISA, which require prior FISC determinations, based on probable cause, that the target of the electronic surveillance or physical search is an agent of a foreign power. In that regard, it is important to note that when Congress first enacted FISA in 1978, it carefully crafted the definition of an agent of a foreign power in a protective manner. Briefly, to be considered an agent of a foreign power, a U.S. person must, for example, “knowingly engage” in clandestine intelligence activities for a foreign power, or in sabotage or international terrorism activities for a foreign power.

In addition, government applications under Titles I and III are long, detailed documents that the government has emphasized are challenging to prepare (the problematic application for Carter Page has been released in classified form and exceeds 80 pages). The number of FISA probable cause orders targeting U.S. persons is small compared with the number of U.S. person query terms under Section 702. In 2025, there were 278 probable cause court orders for 606 U.S. person targets. By contrast, in that year, the CIA, NSA, and NCTC used 7,724 U.S. person “unique identifiers” (e.g., an email address) for queries designed to retrieve the contents of communications; the FBI reported a slightly higher number for its non-batch queries.

A blanket warrant requirement would, presumably, result in a dramatic decline in U.S. person queries. While this result may be desirable to proponents of such a requirement, it could pose significant national security risks, which has led to the creation of exception categories. For example, the Government Surveillance Reform Act would carve out emergencies, consent, and certain defensive cybersecurity queries.

Interestingly, a side effect of a warrant requirement could be an increase in Title I applications, together with corresponding government requests for additional resources to process them. Probable cause orders under FISA provide the government with expansive access to all of the U.S. person target’s communications and thus go well beyond the incidental communications with a foreign target captured under Section 702.

The Status Quo

At the other end of the spectrum is the Trump administration’s position that existing protections—as recently updated by RISAA—are sufficient to guard against the risk of government misuse of this powerful surveillance tool. The prior administration explained its opposition to a warrant requirement for U.S. person queries by arguing that it would cause unacceptable delays. As laid out by then- Assistant Attorney General Matt Olsen in 2023: “[I]n fast moving national security investigations, there just isn’t time to go through the lengthy process generating a court filing, reviewing it appropriately, filing it, having it reviewed by a FISA court adviser, and finally obtaining from a FISA court judge a court order, which can take weeks.” In addition, Olsen argued that “some queries simply could not meet a probable cause showing or some other heightened legal standard” because in most cases, the government is conducting queries at early stages, when it does not have much information about a potential threat.  

The government’s defense of the status quo is implicitly premised on the assumption that it is sufficient for the FISC to conduct post hoc oversight of the extensive compliance measures that are now in effect, especially after RISAA. The debate leading up to RISAA focused on the FBI’s serious compliance incidents relating to U.S. person queries. In Olsen’s 2023 testimony, he highlighted the “quick and dramatic impacts” of the remedial efforts. He argued that the “touchstone question” for legislative proposals should be “does a proposed reform meaningfully address the underlying concern without undermining the operational efficacy of 702?” In last year’s certification opinion, the FISC stated: “After a series of reforms, some of which are codified in RISAA, the FBI seems to be improving its implementation of the general querying standard … Only .66% of [reported U.S. person queries] failed to comply with the querying standard.” Whether post hoc review is sufficient in all cases depends in part on the potential harm caused by an improper query that is identified after the fact.

Within the Spectrum

The choice for expanding the FISC’s role should not be viewed as a binary one. Rep. Jim Himes (D-Conn.) introduced a bill that would require the FBI to obtain a FISC order before accessing the results of a U.S. person query. Under Himes’ proposal, the FISC would have to find that “the information retrieved pursuant to the query … is reasonably likely to include foreign intelligence information,” which is in essence the existing standard in the querying procedures. This would address the government’s argument that it needs to conduct U.S. person queries under circumstances where it does not have enough information to satisfy the more stringent probable cause standard.

However, the government might argue that FISC approval for each query could continue to raise concerns about timeliness. Even though the Himes bill would not impose a heightened standard, it would funnel a significant number of queries to the Court for prior approval. 

Focusing on Core Civil Liberties Concerns

In 1972, during a time of great domestic turmoil, the Supreme Court wrestled with the question of whether wiretapping a suspect’s phone required prior court approval. In the Keith Case, the government argued that a warrant was not required in a case involving domestic security (the government disclaimed any connection to a foreign power). The Court focused particularly on the exercise of First Amendment freedoms:

History abundantly documents the tendency of Government—however benevolent and benign its motive—to view with suspicion those who most fervently dispute its policies. Fourth Amendment protections become the more necessary when the targets of official surveillance may be those suspected of unorthodoxy in their political beliefs … The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.

It ultimately found that prior court authorization was required for electronic surveillance conducted for domestic security purposes but allowed that Congress could enact different ways of effectuating that requirement, taking into consideration the special needs of domestic security investigations.

Concerns about government interference with domestic political processes lay at the heart of key findings and recommendations of the Church Committee just a few years later. This congressional committee–co-chaired by Sen. Frank Church (D-Idaho) and Sen. John Tower (R-Texas)-- exhaustively examined the intelligence abuses of that era, and published a multi-volume report with extensive recommendations for reforming the Intelligence Community. The committee concluded:

[T]he Government has collected, and then used improperly, huge amounts of information about the private lives, political beliefs and associations of numerous Americans. That these abuses have adversely affected the constitutional rights of particular Americans is beyond question. But we believe the harm extends far beyond the citizens directly affected…

Free government depends upon the ability of all its citizens to speak their minds without fear of official sanction… [N]o citizen should have to weigh his or her desire to express an opinion, or join a group, against the risk of having lawful speech or association used against him.

When Congress enacted Title I of FISA in 1978, both the Keith Case and the Church Committee featured prominently in the legislative history, and led Congress to include an express prohibition in Title I: “[N]o United States person may be considered a foreign power or an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.” By way of explanation, Senate Report 95-604(I) (1977) stated:

The committee is concerned that the surveillance authorized under this chapter not result in the acquisition and retention of information which would adversely affect the exercise of first amendment rights…. Information relating to the lawful political activity of American citizens or resident aliens is, by definition, not foreign intelligence information and may not be acquired, retained, or disseminated under the provisions of this legislation.

How does this concern translate to the Section 702 context? When Congress enacted RISAA in 2024, it established the category of “sensitive queries” to protect against the use of U.S. person queries to improperly focus on political activities, journalists, or religious leaders. However, Congress stopped short of requiring more than internal approval (with the proviso that internal approvers may not include political appointees). Despite the internal approval requirement, the PCLOB reported that the FBI’s sensitive queries jumped from 227 in 2024 to 839 in 2025. The FBI did not provide the PCLOB with detailed explanations of that increase.

A Hybrid Role for the FISC in U.S. Person Queries

To safeguard core civil liberties while preserving the effectiveness of this vital authority, one could envision a mixed role for the FISC in U.S. person queries. As a neutral and detached magistrate, the FISC would approve in advance the retrieval of information relating to sensitive queries, while playing a robust role in post hoc review of other queries. This hybrid role could be implemented through an interrelated series of measures, along the following lines:

• The Query Standard. At the outset, Congress could codify the current query standard that appears in the querying procedures. It is a standard with which the FISC and the government are intimately familiar, and therefore would not create undue disruptions or delays due to interpretative uncertainties. Codification would also guard against potential efforts to loosen the standard in future certifications.
• Prior FISC Approval for Sensitive Queries. The FISC could approve in advance the government’s justification for each sensitive query term—based on the above standard—before the government reviews the results. This would affect only a relatively small subset of total queries and would require the government to present justifications for which it is already required to seek internal agency approval to the FISC. For most queries, the government’s query activity would continue to be as agile as it is now.
• First Amendment Protection. The sensitive query provision under RISAA focuses on politicians, journalists, and religious leaders. This leaves outside its ambit anyone else engaging in First Amendment activity, such as protestors. Important additional protection, therefore, would be twofold. First, just as Title I has an express prohibition that safeguards First Amendment activity, so too should U.S. person queries. Such a provision might read as follows: “No United States person query may be justified solely upon the basis of activities protected by the First Amendment to the Constitution of the United States.” Second, “sensitive query” could be amended to include: “a U.S. person participating in protected First Amendment activity where there is an articulable, non-pretextual foreign intelligence reason for conducting the query.” This would, on the one hand, enable the government to conduct a query in situations where the First Amendment activity is not the sole basis for the query, while on the other hand, ensuring prior FISC review given the importance of protecting the civil liberties at stake.
• Other Measures. Congress could further strengthen existing compliance and oversight functions. For example, the government could be required to make available a copy of the query justifications upon request, so that it could confirm that the query standard is being met through direct examination. In addition, Congress could enhance the FISC’s remedial powers if it finds material and persistent noncompliance, including the authority to temporarily expand the categories of queries for which prior approval is required. In addition, Congress should include the provisions from the proposed Foreign Intelligence Accountability Act that criminalize knowing and willful violations of the U.S. person query requirements, and that involve the ODNI’s Civil Liberties Protection Officer in conducting monthly reviews of the FBI’s U.S. person queries, with violations reported to the Inspector General of the Intelligence Community. Finally, Congress should appropriate and authorize additional funds for Section 702 compliance and oversight functions.

There is precedent for the FISC approving queries of data already collected by the government. During a transitional period as changes were being made to Section 215’s bulk telephony metadata program, the FISC approved procedures under which it would review in advance queries of the bulk data based on a “reasonable articulable suspicion” standard. This precedent shows that (a) the FISC can engage in prior judicial review of queries of data in the government’s possession, and (b) that review can be based on a standard short of probable cause.

Measures such as those outlined above present an approach that is within the spectrum of possible approaches, but they are not the only options. The choice is not simply “yes” or “no.” Rather, the decision before Congress is how best to deploy the FISC as a neutral and detached magistrate, in a way that protects core civil liberties while maintaining the effectiveness of this vital national security tool.