FISA Section 702 Isn’t Broken. Why Are We Still Trying to Fix It?

Once again, the United States is days away from the expiration of the nation’s most important foreign intelligence tool—and we’re once more trapped in a familiar cycle: partisan gridlock, time pressure, and a collection of misleading claims.

Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorizes U.S. spy agencies to collect information about foreign terrorists, authoritarian regimes, and other foreign intelligence targets, expires on April 20. And this time around, the politics of reauthorization are even messier than usual.

Adopted on a temporary basis in 2008 with bipartisan support, the statute has been extended several times with generally declining majorities—facing opposition at various points from libertarians, anti-deep-state Republicans, leftists worried about surveillance powers, and others.

But now there are two additional obstacles: First, some Democrats who might otherwise support reauthorization are hesitant about handing such a powerful intelligence tool to an administration they don’t trust. And second, somehow Section 702 reauthorization has become conflated with an issue that has nothing whatsoever to do with FISA authorities: whether the FBI and other agencies can purchase commercially available data about Americans from data brokers.

Perhaps emboldened by this novel opposition, the statute’s critics this year are renewing their unsuccessful arguments using misleading claims, ignoring the substantial reforms enacted in the last reauthorization in 2024. Recently, the Brennan Center at NYU Law School published a document entitled “FISA Section 702 Backdoor Searches: Myths and Facts.” The short note recycles the old arguments for imposing a warrant requirement. But the underlying facts have changed since the last reauthorization, and those arguments—unpersuasive even then—are simply in opposition to the facts today.

The 2024 reforms were aimed at the most controversial aspect of Section 702: Although only foreigners can be targeted, inevitably some of them communicate with Americans, and the latter’s information gets scooped up in “incidental collection.” There’s no question that this incidental collection is completely lawful. The concern, however, is that under certain circumstances, the federal government can search this incidental collection database for information about Americans who weren’t targets in the first place. Consequently, the statute’s critics have sought to require a judicial warrant as a condition of these electronic searches—even though all but one of the courts to consider the issue has said the Constitution’s Fourth Amendment doesn’t require a warrant.

In short, the reforms introduced in the last reauthorization are working, no serious abuse or procedural problems have surfaced in the meantime, and the reasons Congress rejected previous attempts to impose a warrant requirement are even more relevant in today’s parlous world. For a “protection” potentially affecting a tiny number of Americans, the entire nation might face a greater risk of terrorist attacks and cyber maliciousness.

The Myth About Commercial Data Brokers

Before delving into the issue of judicial warrants, it’s important to dispel a widely circulated—and erroneous—claim about FISA: that it somehow enables the FBI and other agencies to purchase Americans’ data from commercial data brokers. The data broker issue should be distinguished from the debate over reauthorization. Congress should—separately and thoroughly—consider the consequences of commercial information about Americans being available for purchase by the federal government and, for that matter, whether recently adopted laws are truly effective in blocking adversary countries such as China from acquiring that information. But the critics of data broker purchases by the intelligence community view the Section 702 reauthorization as their best chance for a legislative ban on the practice.

They have characterized their efforts as “closing the FISA loophole.” But the only asserted “connection” to FISA is unrelated: Over a decade ago, in a specific effort to curtail the former Section 215 telephony metadata collection program, the USA Freedom Act amended FISA to prohibit such bulk collection. As made clear in the congressional committee reports at the time (such as H. Rep. 114-109 and its predecessor, H. Rep.113-452), the concern was with telephony metadata; there was no consideration of a general prohibition on data acquisition. In other words, there was no loophole left open to be later closed.

The Statistics Don’t Lie

Beyond concern regarding commercial data brokers, critics are renewing their previously rejected arguments for requiring judicial warrants to conduct searches. But the government’s track record in implementing the recent reforms is important and makes outdated calls for a warrant misguided or worse.

For years, the concerns over electronic searches of the Section 702 database have focused on the FBI, because it has domestic law enforcement responsibilities in addition to foreign counterintelligence duties. And the bureau had a record of errors and abuses of authority (even if many were self-reported and remedied). Not surprisingly, therefore, the Brennan Center paper leads with this: “the FBI conducted over 57,000 … ‘backdoor searches’ in 2023 alone.”

That might seem like a striking figure, and it’s deployed to suggest that the problem is enormous and out of control. The use of the loaded term “backdoor searches” to describe the electronic review of the lawfully collected data suggests that these searches were inappropriate or sneaky. However, there’s no doubt whatsoever that an FBI agent is authorized to view, analyze, and act upon communications (including Americans’ incidental collection) at the moment they are obtained under Section 702. So why does the fact that they’ve been electronically stored and thus searchable mean that they’re now off-limits unless the agent has a warrant? It’s hard to formulate any coherent answer.

The cited figure for 2023 is true. But misleading. The Brennan Center note ignores the fact that Congress changed the law at the time of the last reauthorization, in 2024—and when the FBI fully implemented those changes, the ensuing results reflected it. These are the number of searches for the relevant year in the FBI’s 702 database for information about Americans:

• 2022: 119,000
• 2023: 57,000
• 2024: 5,518—of which 38 percent returned any results
• 2025: 7,413—of which 28 percent returned any results

That’s a 94 percent drop—directly attributable to the restrictions imposed in the 2024 reauthorization.

The Brennan Center note didn’t mention the reduction. Nor did it note that the FBI cannot examine anything in the Section 702 information beyond a small sliver of the intelligence community’s total collection. That’s because out of the almost 350,000 foreigners who were targeted under Section 702 in 2025, only about 10,500 foreigners—who were the subject of full national security investigations—were added to the FBI’s database. That’s about 3.02 percent. (The other 339,500 foreign targets aren’t even sent to the FBI but are analyzed by the National Security Agency, the CIA, and the National Counterterrorism Center.) And of course, not every one of those 10,700 foreigners was in communication with an American. Thus, the actual number of Americans whose communications might ever be the subject of a Section 702 search by the FBI is quite limited.

It’s a fair point to say that the precise number of Americans in the FBI’s database is unknown, but we do have a sense of scale. When Congress weighs bolting a deeply questionable warrant requirement onto one of the nation’s most important national security statutes, it should keep in mind how many people would potentially be afforded such a “protection” and what exactly the benefit would be.

Congress Made Reforms—and They’re Working

Before resurrecting the suggestion that the FBI should be required to obtain a court order before running a search, it’s important to understand why Congress previously rejected this proposal—and what it did instead. Congress instituted the most significant set of reforms to the statute since its adoption, including the following focused on searches in the FBI’s Section 702 database for information about Americans:

• Restricting the purpose of searches in the first place to foreign intelligence, not simply fishing for evidence of a domestic crime.
• Mandatory annual training for every FBI agent doing queries.
• Requiring FBI attorney or supervisor preapproval for every single search, to confirm that the search was justified under the law and narrowly tailored to elicit only the necessary information.
• Tighter rules requiring additional senior-level approvals—up to the FBI deputy director—for searches involving politicians, journalists, religious organizations, or media.
• Written justification for every single query, with the FBI’s computer systems newly programmed to require agents to input every time the proper justifications and other facts to ensure compliance.
• Detailed record-keeping and audit trails.
• Full audit after the fact of every search by both the FBI’s internal audit unit and attorneys in the Department of Justice’s National Security Division.

The Courts Have Spoken: The Constitution Doesn’t Require a Warrant

The centerpiece of the Brennan Center’s constitutional argument is “a federal court recently ruled that the Fourth Amendment’s warrant requirement applies to backdoor searches.”

That’s true. In 2024, a federal district court in New York in a case involving a terrorist, U.S. v. Hasbajrami, said that the government should have obtained a warrant to conduct its searches of the 702 database back in 2011. (As a U.S. permanent resident, Hasbajrami was entitled to the protection of the Fourth Amendment.)

But the Brennan Center note fails to mention the far more important point—that every other court to have expressly considered the issue ruled the other way. In short, Hasbajrami is an outlier decision.

The court with the most direct expertise in Section 702—the one that approves surveillance and searching procedures—is the Foreign Intelligence Surveillance Court (FISC), and it has on at least four occasions expressly rejected the notion that a warrant is required to search the already lawfully acquired “incidental collection.” Moreover, some of those decisions were affirmed by the special court that handles appeals from the FISC, the Foreign Intelligence Surveillance Court of Review. Even the appellate court that had sent the Hasbajrami case back down to the district court declined to rule that a warrant was required. And of course, on the four occasions that Congress itself reauthorized Section 702, it rejected amendments that would have imposed a warrant requirement.

In fact, the Hasbajrami ruling is itself on appeal and has faced strong criticism from legal commentators. It wouldn’t be surprising if it’s overturned given that the underlying searches predated the recent statutory reforms—and those reforms would surely be cited as evidence of the reasonableness of the search for Fourth Amendment purposes.

Requiring a Warrant Threatens National Security

Another claim that needs more examination is the Brennan Center’s assertion that imposing a warrant requirement would be only a “modest burden on courts.” Once again, it’s important to understand the actual procedures and data involved.

There are various stages at which, in theory, a warrant might be required. In 2025, the four intelligence agencies that receive the Section 702 information queried their respective databases for information about Americans at least several thousand times (the precise number isn’t available because of different counting methods). Even if the requirement kicked in only when the FBI wanted to look at the actual content of emails or other communications—as opposed to just metadata (the technical details of when and how a message was sent)—the volume of cases would be far beyond the capacity of the FISC. The exact number of hits in the Section 702 database that could yield content isn’t known, but it’s surely many thousands annually and thus hundreds or more every week. A massive staff increase would be needed at each agency to prepare sworn affidavits and accompanying documents; the FISC would have to be multiples of its current size to review applications on a timely basis. This is simply not realistic.

But the real issue isn’t the numbers—it’s what we’d lose in terms of timing and in conducting potentially revealing searches. And that’s critical. As the just-released Staff Report of the Privacy and Civil Liberties Oversight Board stated:

U.S. person queries of Section 702-acquired information continue to have significant national security value. PCLOB has been apprised of a number of threats to human life and critical infrastructure since 2023 that were thwarted or averted in part due to information gleaned from U.S. person queries.

Section 702 searches are typically undertaken at the early stages of an investigation, when the FBI is trying to determine if there really is a genuine threat or who might be targeted. Searches might typically be undertaken, for example, to warn potential victims of a North Korean ransomware scheme, to uncover initial details of and connections to an Iranian terrorist scheme, or to intercept the recruiting of an American to spy for China. At those preliminary stages, it’s usually impossible to get a search warrant.

This isn’t a scare tactic. Take a plausible example: A terrorist who’s a Section 702 target is captured or killed overseas. His cell phone has a contact in it, “Joe,” with a U.S. phone number and an email address. The information is passed on to the FBI, which understandably wants to look in the Section 702 collection for more details about who the terrorist was talking to and why. Assuming other conditions are met, under current law the FBI could search for that phone number and email, obtaining not only details about the time of the calls and emails, but more importantly, the content of the communications. The FBI wouldn’t have “probable cause” to seek a search warrant before making the search. Apart from being listed in a cell phone contact list (possibly relevant but hardly sufficient), there’s no evidence that Joe is involved in the terrorist’s malicious activities. And learning about the timing—obtaining the metadata—isn’t going to change the picture. At that point, the FBI could not get a traditional warrant to search Joe’s home, nor meet a new warrant requirement imposed on Section 702. So the search simply won’t get done—and that could prove to have disastrous consequences.

An emergency exception to a warrant requirement wouldn’t make a difference in this case. There’s no obvious urgency to finding out more about Joe. But a delay could in retrospect prove to have been a missed opportunity to thwart a terrorist plot.

Congress Should Extend the Statute as Is, but Keep Monitoring It

Congress took the time in 2024 to thoughtfully balance the concerns of civil libertarians and others about the FBI’s Section 702 search process, recognizing the need for searches to be conducted quickly and effectively in national security investigations. In the ensuing years, there’s been no serious indication of abuse, the statute has been complied with, and the number of searches dramatically reduced—and the intelligence community feels the balance is about right.

It’s fair to consider intervening developments such as new judicial decisions, and it’s important to have a robust debate about these issues, in part to ensure public trust in the intelligence community’s work. But absent a showing of major new problems or a convincing change in legal opinion, it makes sense to stick with the current statute and see whether after a few years of operations the reforms are working the way Congress intended.

That was the purpose behind the 2024 reauthorization statute’s establishment of the FISA Reform Commission that was to report on the effectiveness of the reforms and make suggestions for improvement. Congress should complete the overdue appointments and appropriate funds to get the commission running. A bipartisan group of experts would consider the trade-offs and potential adjustments, and the recommendations of a respected bipartisan commission might be something a sharply divided future Congress could accept.

Terrorist threats and cyberattacks are real. One missed search that could have stopped an Iranian terrorist plot or a Chinese cyber-intrusion would make clear that it’s not a worthwhile trade-off. FISA Section 702 is an essential tool to keep our nation safe. Misleading arguments for unnecessary warrants or conflating data broker purchases with FISA are endangering that tool.

Political divisions may be intractable—but we should be able to agree that tampering with an important national security authority in a dangerous world isn’t a good idea.