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That court, the Foreign Intelligence Surveillance Court, reviews every aspect of Section 702 surveillance—the government submits its surveillance rules for approval once a year. They examine the government’s targeting procedures, rules about protecting Americans’ data and how agents search it in classified proceedings that the public never sees.
House leaders are negotiating with the White House over whether Americans deserve warrant protections before their communications get searched. They’re debating whether to add judicial oversight to a program that already has judicial oversight. The Foreign Intelligence Surveillance Court approves Section 702 certifications every year. It reviews compliance reports. It issues orders when it finds violations. Yet lawmakers are preparing to impose warrant requirements anyway—either because they don’t trust the court’s existing authority, or because they have no way to evaluate whether that authority means anything.
The court’s invisibility makes the evaluation impossible. Most FISC opinions remain classified or heavily redacted. The court operates entirely in secret, with no privacy advocates present to challenge the government’s arguments. When the court does identify problems—and it has—the public learns about them years later, if at all.
How Section 702 Oversight Works
Section 702 doesn’t work like traditional warrants. The government doesn’t go to court each time it wants to monitor someone. Instead, the Attorney General and Director of National Intelligence jointly certify broad programs to the FISC once a year. The court reviews the rules governing how intelligence agencies select targets, retain data, and search it later—not individual targeting decisions.
Targeting procedures must ensure collection focuses on people who aren’t American citizens and are overseas. Rules to protect information about Americans caught accidentally must be in place. Rules about how agents can search through the collected data must restrict access to Americans’ communications. The court examines whether these procedures satisfy both statutory requirements and the Fourth Amendment.
In theory, this gives FISC substantial authority. In practice, it’s hard to know what the court constrains. The Chief Justice appoints all judges, with no involvement from the President or Senate. Currently presided over by Judge Anthony J. Trenga, a George W. Bush appointee, the court includes only judges selected by Chief Justice Roberts.
The court has discretion to appoint outside experts—known as amici curiae—to provide independent perspectives in significant cases. No one appears to argue against the government.
When the Court Found Problems
The FISC has demonstrated willingness to identify violations. The court ordered fixes: mandatory training, stricter approval processes, detailed record-keeping.
Between 2021 and 2022, U.S. person queries fell from 2.9 million to 204,090. Either the court’s fixes didn’t work, the FBI ignored them, or the court couldn’t enforce them. None of those possibilities suggests that existing FISC oversight provides sufficient protection.
The Amicus Experiment
FISC judges retain discretion to appoint experts or exclude them. Most of the outside experts appointed are former government intelligence officials, meaning civil liberties perspectives may not be adequately represented. The rapid turnover prevented development of institutional expertise.
The 2024 reform act attempted to strengthen expert participation, but it does not mandate amici in all Section 702 certification proceedings. Instead, it introduced a concerning modification: FISC must appoint experts with expertise in both privacy and intelligence collection, potentially weakening the protection of individual privacy rights. Privacy advocates complained that the requirement could lead to appointment of former intelligence officials as “privacy experts,” undermining the original goal of introducing independent perspectives to counter government arguments.
A Federal Judge Ruled Warrants Are Required
In early 2025, a federal district court in New York reached a conclusion that directly challenges the adequacy of FISC oversight. In United States v. Hasbajrami, a federal judge ruled that government queries of Section 702 data violated the Fourth Amendment and required a warrant or an applicable exception.
The judge reasoned that acquiring communications lawfully under Section 702 didn’t automatically permit subsequent searching without independent Fourth Amendment justification. The judge compared this to a Supreme Court case about searching smartphones—which required separate warrant power to search a defendant’s smartphone even after lawful seizure—and concluded that queries of Section 702 databases constitute searches requiring either a warrant or an exception.
The government argued that searching lawfully collected information required no separate warrant, that FISC-approved minimization procedures provided sufficient protection, and that the “foreign intelligence exception” to the warrant requirement applied. The judge rejected all three arguments. The ruling noted that the government didn’t prove that requiring warrants would seriously harm national security, observing that the queries in question spanned at least seven months—suggesting no time-sensitive emergency situation justified circumventing Fourth Amendment protections.
The judge didn’t suppress the evidence or overturn the conviction. The evidence was allowed anyway because the government had followed what it thought were the correct procedures, reasoning that the government had relied in good faith on FISC-approved procedures. The decision established a precedent: judges may need to approve each individual search, not general rules.
If that precedent influences future litigation, it undermines the government’s entire position that FISC oversight provides adequate constitutional protection. FISC reviews general rules. It doesn’t assess individual queries.
Current FISC Assessment
The most recent declassified FISC opinions, released in March 2025, provide insight into how the court currently assesses government practices. In reviewing 2025 renewal certifications, the court noted that FBI reforms seem to be reducing illegal searches.
“Seem to be improving” is cautious language. Not “have resolved” or “adequately address.” FISC found that certifications and procedures “meet statutory requirements” and were consistent with the Fourth Amendment, but the emphasis on ongoing improvement and continued monitoring indicates the court perceives ongoing risks.
The Warrant Requirement Debate
As House Judiciary Chairman Jim Jordan and House Intelligence Chairman Rick Crawford discuss potential compromises with the White House, the Foreign Intelligence Surveillance Court’s role in any negotiated settlement remains almost entirely absent from public reporting. The Trump administration wants to renew Section 702 without major changes. The intelligence community warns that allowing Section 702 to lapse would threaten national security capabilities.
Tulsi Gabbard, who oversees U.S. intelligence agencies, said during her confirmation hearing that warrants “should generally be required before an agency undertakes a U.S. Person query of FISA Section 702 data, except in emergency situations.” This approach would mean judges would need to approve individual searches—judges would need to issue warrants for most U.S. person queries, while preserving an emergency exception for imminent threats.
Such an approach wouldn’t eliminate FISC’s role but would substantially expand judicial oversight. Rather than relying solely on FISC’s annual review of general rules, the government would need to seek individual warrants from traditional federal district court judges for specific queries.
Negotiators haven’t publicly addressed practical questions. Would warrant applications be filed in district courts or in the FISC itself? How would classified information in warrant applications be protected? Would the process be expedited for time-sensitive threats? How would judges unfamiliar with Section 702 decide if searches are legal? Would warrant requirements slow down important national security investigations?
With only two months left, lawmakers are under pressure to answer these questions. The House will be out of session for three weeks during the final two months before the deadline, leaving limited opportunity to develop detailed legislative language addressing institutional design questions.
The Core Problem: Secrecy Prevents Accountability
Lawmakers seem ready to add more judicial oversight because they either don’t trust the existing court or can’t tell if it’s working. The court is so secretive that even lawmakers can’t tell if it’s doing its job.
The court’s opinions are heavily redacted. Compliance reports are released with sensitive information removed. The court’s reasoning on key decisions remains classified. The public cannot participate in proceedings that fundamentally affect Americans’ privacy rights. When the court identifies problems—and it has—the public learns about them years later, if at all.
This creates a catch-22. If lawmakers add warrant requirements that conflict with the existing court’s power, judges might give contradictory rulings. If lawmakers rely only on the existing secret court while it can’t explain its decisions, they can’t make good choices about whether the oversight is adequate.
One solution would be to make the court’s decisions public—releasing more court decisions, appointing more outside experts, letting lawmakers see what the court actually does. But that would mean releasing secret information to the public, a politically difficult position when national security is asserted as justification for secrecy.
The other option—requiring warrants by law—would use regular courts instead of the secret court. This approach would be more transparent: regular courts keep public records, and regular judges would follow normal constitutional rules instead of special rules. But requiring warrants would add extra steps that could slow down investigations. And regular courts might enforce the Constitution more strictly than the secret court does.
The intelligence community says the FBI now follows the rules 98 percent of the time: by 2023, FBI querying compliance reached 98 percent. But that metric may be misleading. The number of searches dropped from 2.9 million to 204,090—a 99.8 percent decrease—suggesting agents are now afraid to run queries that might be legitimate, not that violations have been nearly eliminated. FBI officials admitted to the Inspector General that agents are now afraid to run searches they should be running, which could lead the FBI to miss potentially critical threat information.
As of mid-February 2026, lawmakers still haven’t decided how to handle these issues. The White House has signaled openness to negotiations, but the administration wants to renew Section 702 without changes. Meanwhile, lawmakers from both parties who oppose government practices are pushing for a showdown that could either result in warrant requirements being added to Section 702 or, if negotiations fail, allow the power to lapse entirely on April 20.
The Foreign Intelligence Surveillance Court was created in 1978 to oversee intelligence gathering before the internet and mass data collection. It remains the central institution through which that oversight is conducted. Whether the court actually protects Americans—or whether its secrecy makes that impossible to know—is the most overlooked question in this debate.
A federal judge ruled that FISC’s approval of general rules doesn’t satisfy the Fourth Amendment’s requirement for individualized judicial review. Lawmakers are negotiating Section 702’s future with almost no discussion of the court that already oversees it. That shows how little faith anyone has in the court.
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