The legislative authority for America’s most important foreign intelligence collection program will lapse on April 20, 2026, unless Congress acts to renew it. Section 702 of the Foreign Intelligence Surveillance Act (FISA) enables programmatic surveillance of foreign targets overseas, with compelled assistance from U.S. telecommunications service providers, while imposing significant procedural safeguards to limit impacts on Americans. The law is the nation’s most valuable intelligence tool in combatting terrorism and countering malicious cyber activity. Yet Congress has only begun to stir as the April 20 deadline approaches. Renewing and permanently authorizing Section 702 is particularly urgent in light of the U.S. military campaign against Iran and the risk of Iranian terrorism and cyber responses.
Opponents of Section 702 reauthorization coalesce again
Last December, the House Judiciary Committee considered the “Oversight of the Foreign Intelligence Surveillance Act” in a hearing where witnesses were uniformly drawn from the ranks of Section 702’s critics, all of whom argued for changes that would weaken Section 702’s capabilities. These were changes that Congress rejected only two years ago, when Section 702 was last reauthorized. An opponent of Section 702 supplemented its testimony with a 40-page written statement that repeated previous criticisms while adding new wrinkles designed to undo revisions to Section 702 made less than two years ago. This was followed, in late January 2026, by the Senate Judiciary hearing with three witnesses: the Brennan Center and two other participants who provided a more balanced view to the debate on reauthorization. There have been no further hearings to date.
More recently, however, sensing an opportunity afforded by the distraction of the conflict with Iran, Senators Mike Lee and Richard Durbin introduced the Security and Freedom Enhancement (SAFE) Act, an openly acknowledged recapitulation of Senator Durbin’s earlier version of the SAFE Act. The 2026 version suffers from the same shortcomings as the 2024 SAFE Act. It essentially repackages the restrictions promoted in the Brennan Center’s testimony in the form of a proposed bill that is, in all material respects, the same bill rejected during the 2024 reauthorization cycle.
Earlier this month, Senator Ron Wyden and a cohort of cosponsors (including Senator Lee) introduced the Government Surveillance Reform Act of 2026 (GSRA) which is a largely repackaged edition of the Government Surveillance Reform Act of 2023 promoted by Senator Wyden. In December 2023, this author explained how and why the 2023 version of the GSRA would adversely impact Section 702.
This year’s versions of the SAFE Act and the GSRA present quintessential examples of proposals rejected by Congress only two years ago that are now being repackaged and offered again simply because reauthorization presents such an opportunity. Section 702’s opponents return for every reauthorization debate, importuning Congress to accept changes that would seriously degrade this essential intelligence tool. When Section 702 was first enacted two decades ago, and its capabilities were not fully evaluated, perhaps this repetitive oversight made sense on some level. But it is time for Congress to bring this cycle to an end and permanently authorize Section 702 as an invaluable and critical component of the country’s national security architecture. Future legislative changes can be made as needed.
Warrant requirements would make intelligence collection more difficult, if not impossible
Critics, media outlets and even legislators describe the Section 702 collection program as “warrantless” surveillance—an appellation suggesting an evasion of the Fourth Amendment’s warrant requirement. This was the predominant theme unifying the four opponents of Section 702 who testified at the December 2025 House Judiciary Committee reauthorization hearing.
Accordingly, the 2026 SAFE Act and GSRA bills proposed that the government secure a Title III wiretap warrant or a Title I FISA order before accessing the contents of a communication retrieved from the Section 702 database by use of a query term using U.S. person (USP) identifier(s).
But the proposed reform is both destructive and premised on a faulty assumption, namely the idea that the 702 program involves warrantless surveillance. This is accurate only in the same literal sense as saying someone has an “unlicensed” microwave oven—technically true but legally irrelevant because there is no legal requirement that someone have a license for their microwave. Equally, there is no legal requirement that authorized Section 702 acquisitions, and the queries used to extract foreign intelligence information from these acquisitions be accompanied by a warrant. Indeed, in FISA Section 702(c)(4), Congress specifically exempts Section 702 collection from the court order requirements found in Title I of FISA.
The Fourth Amendment offers no guarantee that a warrant will be an essential prerequisite to a government search or seizure that might impact individual privacy interests where the search is intended, and reasonably designed, to acquire foreign intelligence information. As the Foreign Intelligence Surveillance Court (FISC) consistently has observed, “The touchstone of the Fourth Amendment is reasonableness [and] although [t]he warrant requirement is generally a tolerable proxy for reasonableness when the government is seeking to unearth evidence of criminal wrongdoing … it fails to properly balance the interests at stake when the government is instead seeking to preserve and protect the national security.”
The FISC, the Foreign Intelligence Surveillance Court of Review (FISCR), and other federal appeals courts have all recognized that surveillance conducted for foreign intelligence purposes can be analogized to the Supreme Court’s “special needs” cases. This analogy has led the FISCR to conclude that a foreign intelligence exception applies to the Fourth Amendment’s warrant requirement because (a) the national security purpose behind the surveillance transcends any garden-variety law enforcement objective, and (b) there is a high degree of probability that a warrant requirement would hinder the government’s ability to collect time-sensitive information impeding vital national security interests. For nearly two decades, the FISC (and, when called upon, the FISCR) have employed a “totality of the circumstances” approach. This approach recognizes that the correct Fourth Amendment analysis of electronic surveillance conducted for foreign intelligence purposes examines the programmatic purpose served by that surveillance, whether that purpose serves a legitimate objective beyond routine law enforcement, and whether that purpose would be “frustrated” by insisting upon a warrant.
n 2017, when Congress added the requirement that agencies having access to the Section 702 database develop and use “Querying Procedures” to govern the act of retrieving information from that database, it explicitly acknowledged that the intelligence collection capability it had created in Section 702 embraced querying the database of communications collected under that authority. This included incidentally collected USP communications. Congress specifically asserted that the Fourth Amendment did not require such procedures but that it was implementing the querying procedures requirement as “a compromise meant to provide additional protections for USP information that is incidentally collected under section 702.” In its April 2023 opinion, the FISC amplified its own previous conclusion from 2018 that the Querying Procedures “expand statutory protections, not the scope of what constitutes an independent search under the Fourth Amendment.”
Only one court has come to a contrary conclusion. In 2025, in U.S. v. Hasbajrami, the federal court in the Eastern District of New York opined that each query represents a separate Fourth Amendment event requiring a separate exception to the warrant requirement.
One opinion cannot supplant 17 years of review and analyses by a host of federal judges, and Hasbajrami has been serially refuted by the FISC since its release in January 2025. The FISC emphasized in February 2025 and March 2025 opinions that querying communications acquired under the authority of a Section 702(h) certification and employing the use of USP identifiers represent one event in the totality of circumstances analysis that governs the Fourth Amendment’s “reasonableness” assessment of the Section 702 process. Nonetheless, Section 702’s challengers invoke Hasbajrami, even in the face of the President’s Intelligence Advisory Board’s (PIAB) observation that such a requirement will “prevent intelligence agencies from discovering threats to the homeland.”
Notably, the warrant requirements advanced in both the SAFE Act and the GSRA employ a peculiarly aberrant interpretation of the Fourth Amendment. Proponents of both pieces of proposed legislation insist that the warrant mandate is necessary because the government is conducting hundreds of thousands of “warrantless searches” of the emails, phone calls, and text messages incidentally collected from those Americans communicating with foreigners properly targeted under the authority of Section 702. Further, they have consistently insisted that each query identifying those communications using a USP identifier represents a Fourth Amendment violation. But they simultaneously argue that the warrant requirement they are demanding is workably “narrow” because it applies not to the initial querying of the database, but only where that USP query actually returns substantive contents that the analyst wants to examine.
By way of example, the GSRA requires a warrant (presumably a Title III wiretap order) or a FISA court order (presumably a Title I FISA order) “before accessing covered information.” In other words, the requirement for a court order arises only after the Section 702 database has been searched using a “covered (i.e., USP) query” that actually produces “covered information” (i.e., communication content not metadata) in response to that query. The SAFE Act takes the same approach—no court order is required until after the search of the database has produced communication contents.
This is a curious dilution of the warrant requirement given that a previous chairperson of the Privacy and Civil Liberties Oversight Board (PCLOB) stated that “running a[ny] U.S. person query does create a privacy intrusion regardless of whether there is a hit.” For years, Section 702 critics have insisted that all USP queries—representing all those allegedly warrantless backdoor searches—violate the Fourth Amendment. But now, not all “warrantless” USP queries are created equal. Instead, both proposed “reform” bills supply the implicit concession that using USP identifiers in a query does not, in and of itself, represent an unreasonable intrusion requiring a warrant—just as the FISC has been saying for years. Instead, the “intrusion” triggering the Fourth Amendment occurs only after the communication already has been identified using a USP query that has returned contents.
One final point is worth considering. The supposed “reforms” in these bills are not limited to protecting Americans—a “covered query” requiring a warrant or court order is any query using a term associated with a “covered person” that is designed to retrieve “covered information.” But, a “covered person” is defined as a U.S. person or “a person reasonably believed to be located in the United States at the time of the query or the time of the communication or the creation of the information.” If the FBI wants to access communications using a query targeting a Chinese agent or Iranian terrorist operating in the United States, these are “covered persons” whose queries would require a court order if those queries return content. It is no wonder that the PIAB cautioned that such a warrant requirement was “unjustified,” “impractical,” and leaves America “significantly less safe.”
The politics of Section 702’s reauthorization
In lockstep with the president, many Republicans have taken his cue and hold the Intelligence Community, and its capabilities, at an arms-length. Conversely, many Democrats are wary of extending an intelligence program with the capabilities of Section 702 knowing that those capabilities will be at the disposal of this president. All of this creates strong headwinds for reauthorization.
The president recently broke his silence and advised senior congressional leaders that he wants a straight 18-month extension of Section 702. House Judiciary Committee chairman Jim Jordan responded by announcing that he will support the president’s requested extension. So contentious are the divisions over Section 702, however, that some doubt that even Mr. Trump’s imprimatur and Representative Jordan’s support will be enough to produce such a “clean” renewal leaving legislation like the SAFE Act and the GSRA in play.
The 2026 versions of the GSRA and the SAFE Act are filled with proposed changes that will individually and collectively make the Section 702 collection program and other intelligence collection and law enforcement activities more difficult notwithstanding that not one of the impacted activities violates the Constitution. The proffered changes and “reforms” will make important intelligence collection and analysis activities more burdensome or, in many instances, will foreclose the ability to collect intelligence at all.
Given the importance of Section 702’s intelligence capabilities to the nation’s security, its lapse would be negligent in any international environment. But allowing it to expire or be fettered by debilitating restrictions at a time when the nation has initiated a conflict with an adversary possessing dangerously destructive terrorist and cyber capabilities would be an act of unparalleled legislative malfeasance. The words of the PIAB offered in connection with Section 702’s 2024 reauthorization still ring true today: “If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time.”
George W. Croner was the principal litigation counsel in the Office of General Counsel at the National Security Agency (NSA). He is a senior fellow at the Foreign Policy Research Institute (FPRI) in its national security program and a member of CERL’s Advisory Council. You can follow him on X (@GeorgeCroner) and find a list of his publications at FPRI.org. Read his full bio here.
Image: Miha Creative / stock.adobe.com