Why Congress Keeps Fighting Over the Same Surveillance Law Every Few Years

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The Trump administration wants Congress to renew Section 702—a surveillance law that lets intelligence agencies collect Americans’ communications without a warrant—before April 20, 2026. House Speaker Mike Johnson faces pressure to deliver either a clean extension or a deal that satisfies both the FBI and privacy advocates, though history suggests that’s impossible.

The coalitions are the same, the arguments identical, the outcome predictable. Libertarian Republicans and progressive Democrats demand warrant requirements. Officials insist the program is necessary and must remain unchanged. Leadership scrambles to prevent either an intelligence lapse or a constitutional crisis. Then Congress punts with a short-term extension, kicking the question down the road for a few more years.

What Section 702 Does

Section 702 lets the government collect and store phone calls and emails targeting people the government thinks are overseas. No individual court orders required.

The controversy starts when those foreign targets communicate with Americans. Your phone call to a business associate abroad. Your cousin’s email from overseas. Your text to a friend traveling in Europe. All of it gets swept into government databases as a side effect.

Then the FBI can search those databases using American identifiers—your name, phone number, email address—without obtaining a warrant. The FBI searched these databases over 57,000 times in 2023, the last year with complete public data. That’s down dramatically from earlier years, when the FBI was conducting hundreds of thousands of warrantless searches annually.

Privacy advocates say this skips the constitutional requirement for a warrant based on evidence of wrongdoing. If the government wants to wiretap your phone or read your emails directly, the Constitution requires a warrant based on probable cause. But by targeting a foreigner abroad and then searching your incidentally collected communications without a warrant, the government achieves the same result without constitutional safeguards.

In January 2025, federal Judge LaShann DeArcy Hall ruled that conducting such queries without a warrant violates the Fourth Amendment.

The Sunset Cycle: Why Congress Keeps Relitigating This

Congress built this cycle into the law. Section 702 includes a sunset provision—it expires unless Congress explicitly votes to reauthorize it. Each reauthorization included a new sunset date, forcing Congress to relitigate the same questions every few years.

The expiration date was supposed to force Congress to review the program. Congress would examine whether the program remained necessary, whether intelligence agencies were complying with restrictions, whether privacy protections needed strengthening.

What happened instead: the intelligence community successfully prevents significant changes by invoking national security necessity, while opponents make gains only when documented abuses become too egregious to ignore.

This dynamic has intensified as partisan polarization has deepened. Intelligence agencies keep secrets Congress can’t share publicly, giving them leverage. Meanwhile, privacy advocates have assembled a cross-partisan coalition—libertarian conservatives worried about government overreach and progressive Democrats concerned about targeting marginalized communities.

That coalition nearly succeeded in 2024. A House amendment requiring warrants for searches of Americans’ communications failed 212-212, a tie vote that killed the measure. One vote different and warrant requirements would be law.

Documented Abuses and the Reform Cycle

Each reauthorization cycle begins with the discovery that intelligence agencies have violated the rules governing the program. Not rare aberrations. Repeated, widespread violations of the rules.

After each round of violations, the FBI promises to do better. New internal procedures get implemented. Then more violations get discovered despite the new procedures.

Privacy advocates point to the abuses as evidence that internal procedures can’t prevent overreach and only warrant requirements can protect constitutional rights. Officials argue the abuses are being corrected through internal discipline and new procedures, that warrant requirements would impair national security, and Congress should reauthorize the program largely unchanged.

The Cross-Partisan Coalition

Senators Dick Durbin and Mike Lee introduced bipartisan legislation to require warrants for queries of Americans’ communications.

The coalition faces powerful opposition: the intelligence community and its supporters in Congress, particularly on the House and Senate Intelligence Committees. While officials don’t publicly lobby Congress—by tradition and law—they communicate their positions through careful testimony and private meetings with key lawmakers.

Democrats have shown signs of shifting positions based on who controls the White House. In 2024, when Biden was president, many Democrats voted against the warrant requirement. Now that Trump is president, some are reconsidering. Representative Jamie Raskin, a progressive Democrat who voted against the warrant requirement in 2024, recently referred to “an assault on the FBI’s internal guardrails against abuse of Section 702 authorities” during Trump’s second term.

Trump’s Position on Section 702

The White House has indicated it prefers reauthorization without additional limitations on intelligence agencies.

But some Trump administration officials have signaled openness to warrant requirements. Director of National Intelligence Tulsi Gabbard stated in confirmation hearing responses that warrants should generally be required before searching Americans’ communications, “except in exigent circumstances, such as imminent threats to life or national security.” That position is remarkably close to what privacy advocates are demanding.

Why Compromise Keeps Failing

Officials argue warrant requirements would slow things down too much, creating delays that could cost lives in urgent counterterrorism scenarios. They point out that queries are often conducted as part of rapidly evolving investigations where waiting for a warrant might allow terrorists to escape or foreign spies to complete operations. They note that many searches are routine checks to see if collected communications should be kept or deleted, and subjecting such searches to warrant requirements would be absurd.

Privacy advocates respond that operational concerns don’t override Fourth Amendment protections. The Constitution has long required warrants, even in urgent circumstances, with narrow exceptions for true emergencies. The government already has rapid access to court judges for emergency warrants. A similar process could be created for Section 702 queries.

The intelligence community’s argument about operational burden isn’t based on actual evidence. The FBI and NSA have never operated under a warrant requirement for Section 702 queries. Their claims about operational impact are speculative.

A second disagreement concerns whether intelligence agencies can be trusted to follow rules without warrant requirements. The documented pattern of systematic violations suggests internal procedures and audit mechanisms repeatedly fail to prevent abuse.

Officials counter that documented violations have been remedied through increasingly stringent procedures, and compliance has improved significantly. They cite statistics showing FBI query compliance rates appear to have risen to 96 percent or higher. They argue recent reforms—including supervisor approval requirements and mandatory discipline—represent meaningful progress that should be given time to work.

Critics note that compliance rates are calculated based only on queries the FBI conducts. If agents stop doing legitimate searches out of fear, compliance rates go up but the agency works worse.

A third disagreement concerns what constitutes abuse. Officials argue many documented violations didn’t result in harm to Americans. Even though the FBI conducted improper searches, these queries were conducted while investigating whether individuals had connections to foreign intelligence services or terrorist organizations—a legitimate national security purpose.

Privacy advocates say that’s not the point. The Constitution doesn’t allow warrantless searches because they might help national security. Once you allow warrantless searches based on a government determination that a search serves legitimate national security interests, you’ve effectively eliminated Fourth Amendment protections for all Americans the government labels as national security threats.

Historical Pattern: Surveillance Expansion and Reform Cycles

Section 702’s recurring battles mirror a broader pattern in American surveillance law: the government expands surveillance capabilities during emergencies, concerns eventually emerge, Congress enacts reforms, the reforms get undermined through creative legal interpretation or procedural workarounds, and the cycle repeats.

The original Foreign Intelligence Surveillance Act, passed in 1978, emerged from this pattern. During the Cold War, intelligence agencies conducted extensive domestic surveillance of Americans, including the FBI’s secret program that targeted leaders of the civil rights movement and anti-war activists. A congressional investigation documented shocking patterns of warrantless surveillance, including NSA programs that monitored Americans’ private communications without any suspicion of wrongdoing.

After the investigation’s 1976 report, Congress enacted the Foreign Intelligence Surveillance Act in 1978, creating a special court and requiring the government to obtain individualized court orders before surveilling Americans for foreign intelligence purposes.

The law worked reasonably well for two decades. Then September 11 happened. The Bush administration wanted to conduct warrantless mass surveillance of Americans’ international communications without waiting for court approval. It secretly launched a massive surveillance program called Stellar Wind, conducting electronic surveillance on a vast scale without court orders. When the New York Times revealed the program in 2005, President Bush went to Congress to request legal authority for it.

Congress agreed in 2008, passing the FISA Amendments Act, which created Section 702 and legalized warrantless surveillance of non-U.S. persons abroad. The law included safeguards: it prohibited deliberately targeting foreigners as a cover to spy on Americans and required procedures to protect Americans’ communications that got collected by accident. The law also included a sunset date, assuming Congress would review the program periodically.

But the safeguards Congress designed haven’t prevented systematic abuse. The rules meant to protect Americans’ privacy didn’t work because the government found a loophole. The rule against using foreign targets as cover to spy on Americans was hard to enforce because the government could claim it didn’t mean to target a specific American, even if it anticipated that American’s communications would be collected.

Every previous reform has been followed by continued violations. Proponents of warrant requirements argue this shows only changing the law itself can prevent abuse. Officials argue Section 702 is hard to run fairly, and better internal oversight is the best solution.

What Happens If Section 702 Lapses

One question lurks in the background: what would happen if Congress allowed Section 702 to expire? Would the loss genuinely damage American national security, as officials claim, or are their warnings exaggerated?

Nobody knows for sure—Section 702 has never expired since 2008.

Officials argue that allowing Section 702 to lapse would be catastrophic. They argue the program provides a lot of the foreign intelligence that helps leaders make national security decisions. They point to examples of terrorist plots disrupted, foreign spies identified, and hostile nations’ communications monitored because of Section 702. They argue going back to the old system would create intelligence gaps that enemies could exploit.

Privacy advocates counter that officials often overstate the value of surveillance authorities. Intelligence agencies developed for decades without Section 702. Many intelligence wins attributed to Section 702 could have been achieved through traditional warrants based on probable cause. They acknowledge removing Section 702 would likely cause some reduction in surveillance capability, but argue this is an acceptable cost of protecting constitutional rights.

The political reality: Congress will almost certainly renew Section 702 before the April 20 deadline. Both the Trump administration and Congress know that letting a major surveillance tool expire during terrorism and global tension would be politically dangerous. Any terrorist attack that officials blamed on the lapse would be politically devastating.

This dynamic strengthens the position of those opposing warrant requirements. Congress is unlikely to allow Section 702 to expire in order to force the intelligence community to accept warrant requirements.

The Structural Impasse

Section 702 forces a choice between national security and protecting Americans’ privacy—two values that are getting harder to balance as partisan polarization has grown and surveillance technologies have become more powerful. The intelligence community has a strong institutional interest in keeping broad surveillance powers with minimal outside oversight. A growing coalition of privacy advocates and privacy-conscious Americans is pushing for stronger constitutional protections.

Congress keeps failing to resolve this conflict, instead relying on temporary extensions and small changes that don’t address the core issue. Each reauthorization cycle brings fresh evidence of surveillance abuse, sparking renewed demands for warrant requirements. But officials successfully argue that warrant requirements would hurt national security, and lawmakers who defer to intelligence agencies continue to block reform.

The April 20 deadline will likely be resolved through some combination of clean extension and small changes that don’t address the core issue, unless the warrant requirement coalition succeeds in forcing a real compromise or the Trump administration agrees to genuine warrant protections. Most observers expect Congress will ultimately extend Section 702, but it’s unclear whether it will include warrant requirements.

If warrant requirements are included, it would be a historic shift in surveillance law and a major victory for privacy advocates who have battled for this outcome for nearly a decade. If Congress passes a clean extension, Section 702 will remain a powerful tool of warrantless surveillance, and the same battle will resume in a few years when the next sunset date approaches.

Unless Congress fixes the underlying problem—Section 702 creates a tension between national security and privacy that small changes can’t solve—these battles will continue. Section 702 represents a choice earlier Congresses made: allow the government to collect Americans’ international communications without warrants for national security. That choice remains controversial, so Congress will keep fighting over it every few years until it finally settles the question.

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