Mum’s the Word on FISA Section 702 Reauthorization

Nobody is saying much about plans in Washington to take up reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA). But with only half a year before it is set to expire, the clock is ticking once again and the sounds of silence are getting louder.

Previous reauthorization cycles had exceeded five years. But House Speaker Mike Johnson (R-La.) shortened that window to two years to secure more votes for the Reforming Intelligence and Securing America Act (RISAA), which reauthorized Section 702 in late April 2024.

RISAA’s success in driving down Section 702 compliance issues will likely insulate the coming debate from several points of controversy that complicated last year’s reauthorization. Some reporting indicates lawmakers are seeking ways to extend the current law. Should that fail, lawmakers could be forced to reengage the contentious question of whether to craft a warrant requirement for U.S. person queries conducted under Section 702 authority.

But there’s an important hurdle preventing Congress from thinking deeply about Section 702 as time passes by: Nobody knows whether President Donald Trump even wants one of the intelligence community’s most powerful authorities renewed.

Reauthorization Redux

Section 702 is a surveillance authority that enables targeting of non-U.S. persons for foreign intelligence purposes through the compelled assistance of electronic communications service providers. U.S. persons cannot be targeted under Section 702, even though their communications are sometimes incidentally collected and then eligible to be queried. The U.S. government identifies the topics of Section 702 collection, the minimization procedures, and its query standards in certifications submitted to the Foreign Intelligence Surveillance Court (FISC) for approval.

The tool has long been regarded as both valuable and controversial, depending on whom you ask and when. The Intelligence Community and policymakers have consistently described Section 702 as one the U.S. government’s most productive methods of collection. In 2024, the National Security Agency reported that 60 percent of articles for the President’s Daily Brief contained Section 702-enabled intelligence. Privacy advocates and civil libertarians oppose the law with similar fervor because they believe the U.S. government should be required to obtain a warrant before running queries of incidentally collected U.S. person communications.

The previous reauthorization process also faced unique issues of substance and politics beyond perennial debates around a warrant requirement.

First, in 2022, the Foreign Intelligence Surveillance Court (FISC) found that the Federal Bureau of Investigation had run a staggering number—about 278,000—of inappropriate U.S. person queries owing, in part, to misunderstandings around the query standard, inappropriate batch queries, and databases designed by default to include FISA information during searches.

Separately, the Justice Department concluded the FBI had not followed internal procedures designed to substantiate factual assertions made during applications for court-ordered FISA surveillance. This issue initially came up during the FBI’s investigation into former Trump campaign adviser Carter Page and later was discovered to be a widespread issue across the Bureau’s FISA applications.

The FBI’s “Carter Page” missteps did not implicate Section 702 authorities because they occurred pursuant to the FISA Title I process. Under FISA Title I, the FBI can obtain a court order for electronic surveillance conducted inside the United States or against a U.S. person based on probable cause to believe the target is a foreign power or agent of a foreign power. Nevertheless, all of the various FISA issues framed last year’s Section 702 reauthorization debates.

Lawmakers were aligned on the need for reform, but divided as to how far—and where—to focus those efforts. Section 702’s proponents favored precise reforms that preserved the authority’s existing structure, while civil libertarians and government skeptics across the ideological spectrum pressed to dramatically curtail Section 702 with a warrant requirement. The bill that President Biden ultimately signed into law—RISAA—represented a win for his administration and hawkish lawmakers. But the cost of that substantive victory was a short period before Congress required renewal again. That period is now almost at an end.

RISAA’s Initial Results

The road to RISAA was paved with good intentions. Many of the law’s provisions on Section 702 codified steps the FBI had already taken to improve compliance with the querying standard. The Bureau had instituted senior management approvals for politically-sensitive queries and, to drive down inadvertent queries, defaulted to an “opt-in” model for returning FISA results in various databases. As summarized by the Justice Department’s Office of the Inspector General (OIG), the text of RISAA also went further in certain areas:

RISAA requires that FBI personnel obtain approval from an FBI supervisor or attorney prior to conducting a U.S. person query of Section 702-acquired information. RISAA prohibits the involvement of any political appointees in the approval process for certain sensitive queries, or for a permissible batch query. [. . .] In addition, RISAA restricts the FBI’s authority to query Section 702 data for information relating to members of Congress and requires the FBI to promptly notify congressional leadership and affected members of any such queries. Finally, with limited exceptions, RISAA prohibits the FBI from conducting Section 702 queries for the sole purpose of finding evidence of criminal activity.

The impacts of these reforms are increasingly coming into view.

Last month, the Justice Department Inspector General released its first review of the FBI’s querying practices since RISAA became law. Overall, OIG concluded that “the FBI is no longer engaging in the widespread noncompliant querying of U.S. persons that was pervasive just a few years ago.” Of the small number of noncompliant querying, OIG observed that “most” were “due to administrative mistakes . . . rather than due to fundamental misunderstandings of the query standard.”

The FISC made a similar finding in a recently declassified opinion from March 2025 that contained renewed Section 702 certifications. “The FBI seems to be improving its implementation of the general querying standard,” the FISC noted.

OIG and the FISC relied on statistics from the Justice Department’s National Security Division. The positive outcomes reflect how far the Bureau’s culture and infrastructure around Section 702 matters has evolved due to RISAA and the FBI’s own remedial measures.

While the FBI’s compliance has risen, its overall use of U.S. person queries has declined dramatically, according to the Annual Statistical Transparency Report (ASTR) released by the Office of the Director of National Intelligence (ODNI). From December 2023 to November 2024, the most recent reporting period, the FBI conducted around 5,500 queries—a 90 percent decrease compared to roughly 57,000 queries run from December 2022 to November 2023.

Interviewees for the Justice Department OIG report raised three potential causes behind the decline. These include the “administrative burden” of navigating the pre-approval and written justification requirements, an “audit fatigue” among agents and analysts from responding to overlapping FBI and Justice Department reviews of U.S. Person queries, and a fear of triggering disciplinary action.  

The decreasing number of Bureau queries contrasts with an uptick in other areas of Section 702 activity reported in the ASTR. The overall number of estimated Section 702 targets rose from about 269,000 (in calendar year 2023) to just shy of 292,000 (in calendar year 2024). Additionally, CIA, NSA, and NCTC collectively made about 7,800 U.S. person queries in 2024, which was an increase from about 3,800 in 2023.

The growth in Section 702 targeting is likely an enduring trend. In April, the FISC approved a new Section 702 certification for counternarcotics, which flowed from RISAA’s expanded definition of foreign intelligence information. 

Reauthorization Wildcards

Lawmakers may seize on RISAA’s early progress to quietly advance a clean extension of Section 702 within the context of some other must-pass legislative vehicle like the National Defense Authorization Act. Reporting from The Record sheds light on these plans, which could involve extending current Section 702 authorities while Congress awaits recommendations from a FISA reform commission.

But several wildcards will influence how reauthorization moves forward, the degree to which Section 702 (again) dominates news cycles, and whether or not the authority ultimately sunsets.

President Trump

Perhaps no greater wildcard exists than President Trump, whose tumultuous relationship with FISA dates back to his first term in office. In 2018, he made two contradictory social media posts – first criticizing FISA, then endorsing it – that confused House Republicans as they prepared to vote on reauthorization. He again nearly derailed Section 702’s prospects last year when he posted for lawmakers to “Kill FISA” ahead of a key vote. Trump has maintained that the botched applications for FISA surveillance against Carter Page represented a concerted U.S. government effort to spy on his presidential campaign. He may now find Section 702 difficult to assail given his prior support for it as President and 702’s more direct utility with counternarcotics issues, a major administration priority.

Congressional Republicans are likely to closely heed his view, even if there’s whiplash.

Because of this dynamic, the stance of Trump’s key appointees is also unclear. As nominees, Attorney General Pam Bondi, Director of National Intelligence Tulsi Gabbard, and FBI Director Kash Patel acknowledged Section 702’s value and pledged to work with Congress on areas of reform. In her written submission, Gabbard maintained that “[w]arrants should generally be required before an agency undertakes a U.S. Person query of FISA Section 702 data, except in exigent circumstances.” They have been relatively circumspect since then.

(Neither the Justice Department nor the National Security Agency responded to a request for comment. Asked about Director Gabbard’s perspective, an ODNI spokesperson offered to be in touch if they had “anything here.” As a lawmaker, Gabbard opposed Section 702.)

The ambiguity represents a stark departure from the executive branch’s active role shaping reauthorization last year. The Biden administration was willing to declassify as much as possible in favor of engaging the Hill and showing Section 702's global intelligence value. An early start was critical to this public engagement. A former senior Biden administration official noted how the tenor of reform was very clear almost 11 months ahead of sunset.

Democratic Support

Last year, Democratic votes were critical to preventing Section 702’s lapse. In the Republican-controlled House, more Democrats voted to reauthorize Section 702 than did Republicans. Now, it is unclear how much centrist Democrats like Senator Mark Warner (D-Va.) and Representative Jim Himes (D-Conn.)—the ranking Democratic members on the Senate and House Intelligence Committees, respectively—will try to shore up support on their side of the aisle. Entrusting the Trump Administration with more authority under expansive national security laws is not very popular among Democrats, especially as the administration makes dramatic assertions of executive power.

Last week, Himes discussed this tension. He assessed it would be a “heavier lift” for Democrats to reproduce the large numbers of votes in favor of reauthorization despite the “dramatic improvement[s]” made by the IC and FBI. “It’s a very different environment for the party that produced most of the votes to reauthorize [Section 702] today than it was a year ago.”

For his part, Warner laid bare his frustrations with the Trump administration’s approach to the intelligence issues during a recent floor speech. Many Democrats who share Warner’s concerns about politicized intelligence may worry about the implications of leaving Section 702—a powerful collection tool—in the administration’s hands.

But some current and former officials played down immediate fears of Section 702 weaponization. A person familiar with the matter noted that lawmakers had not yet seen a misuse of Section 702 authorities in such a way as to alienate Democrats like Himes, who might otherwise be inclined to support reauthorization. The former Biden official assessed that it was possible to be appalled by the Trump administration's actions and still support 702’s reauthorization because of the oversight mechanisms from all three branches of government and the requisite interactions between the government and electronic communication service providers.

Warrant Requirement

The warrant requirement for U.S. person queries might figure prominently in this latest reauthorization debate, now that RISAA has taken other reform issues off the table. The House very narrowly rejected an amendment last year that would have required the U.S. government to secure a warrant based on probable cause before running a U.S. person query. Some lawmakers may see an opening next year to tie this concept with overall passage of reauthorization, forcing moderates to choose between accepting a warrant requirement or Section 702’s sunset.

The structure of a proposed warrant requirement could make a difference. The narrowly-defeated Biggs Amendment was a non-starter for hawkish lawmakers and the Biden administration because it would have required the government to expend resources meeting a probable cause standard to run a query—without knowing if that query would even produce results. (A query is often conducted early in the government’s fact-finding.) Potential areas of compromise might include a lower evidentiary threshold, such as the current query standard of “reasonably likely,” and making the court order a prerequisite for viewing returns, not running the query.

Any requirement for judicial intervention would still have to consider the significant increase placed on the FISC or other courts and attendant operational delays.

Courts have offered competing legal answers. At the programmatic level, the FISC has found the U.S. government’s U.S. person querying procedures consistent with the Fourth Amendment. But in February, a district court in Brooklyn ruled that the U.S. government erred in not obtaining a warrant before running queries during a counterterrorism investigation in the early 2010s. That decision followed one from the Second Circuit in 2019 that suggested querying had “important Fourth Amendment implications” and should be viewed as a separate Fourth Amendment event.

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Little is known about Section 702’s prospects for reauthorization with less than six months until the provision is slated to sunset. RISAA’s reforms have stemmed some of the underlying compliance issues that plagued the U.S. government last year. Under different circumstances, that success would be a cause for celebration. Here, time will tell whether Congress fixed Section 702 just long enough to let it lapse.