[Congressional Record Volume 172, Number 69 (Monday, April 20, 2026)]
[Senate]
[Pages S1835-S1836]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  Mr. DURBIN. Mr. President, section 702 of the Foreign Intelligence 
Surveillance Act, known as FISA, is a valuable, important national 
security tool

[[Page S1836]]

for collecting foreign intelligence. The problem is that the government 
is also using section 702 as a backdoor for warrantless spying on 
Americans here at home.
  FISA section 702 allows the intelligence community to collect the 
communications of foreigners who are overseas without a warrant. The 
justification for bypassing the Constitution's warrant requirement is 
that foreigners overseas are not protected by the Fourth Amendment. 
American citizens certainly are. But the government isn't just 
collecting the communications of foreigners; they are also collecting 
millions, if not billions, of communications of innocent Americans in 
touch with those foreigners as well. Our government then searches those 
private emails, phone calls, and text messages of Americans without a 
warrant. Congress has repeatedly failed to fix this end run around the 
Constitution's protection.
  Unsurprisingly, without court approval for such searches, the 
independent Privacy and Civil Liberties Oversight Board and the FISA 
Court have documented shocking abuses of section 702 by our government. 
The intelligence community has used this authority to spy on American 
businesses, American religious leaders, political parties, campaign 
donors, journalists, and protesters across the political spectrum. And 
this was all before we had an administration which was expressly intent 
on targeting its political enemies.

  In April 2024, Congress enacted the Reforming Intelligence and 
Securing America Act, which reauthorized section 702 for 2 years with 
reforms that were meant to rein in past abuses. However, these reforms 
failed to prohibit warrantless searches of Americans' communications 
collected under section 702. In fact, warrantless searches of Americans 
increased in 2025, with the FBI alone conducting more than 7,000 
warrantless searches on Americans last year.
  Just as troubling is the increase in so-called sensitive queries by 
the FBI under Kash Patel's leadership. These are warrantless searches 
of section 702 data that target religious leaders or organizations, 
politicians or political organizations, or journalists. In 2025, the 
FBI conducted over three times as many sensitive queries as in 2024.
  These statistics are troubling enough, but with the Trump 
administration closing oversight offices, firing compliance staff, 
dismantling the Privacy and Civil Liberties Oversight Board, and 
failing to testify, the full scope of their abuses remains unknown.
  The administration is also keeping the latest FISA Court ruling on 
section 702 secret from the American people. The administration 
acknowledged that the court found ``deficiencies'' with how the 
government is conducting 702 searches. Yet it hasn't released the 
court's opinion or the details of these ``deficiencies'' to the 
American people.
  Meanwhile, POLITICO reports that Stephen Miller--the architect of 
President Trump's immigration crackdown in Minneapolis, Chicago, and 
beyond--is the White House's chief advocate for extending section 702.
  Miller reportedly views section 702 as ``critical to a variety of 
homeland security missions.'' Why does Stephen Miller view section 
702--a statute designed to collect foreign surveillance and 
intelligence--as critical to homeland security inside the United 
States? Well, in 2024, Congress quietly expanded section 702 to allow 
it to be used for immigration vetting.
  How is the President exploiting this expansion of section 702 to 
carry out his mass deportation campaign? We don't know because the 
administration refuses to testify about the use of this authority.
  Congress should not give Donald Trump, Stephen Miller, and Kash Patel 
unchecked power to spy on Americans.
  Last week, the House rightly rejected on a bipartisan basis attempts 
to renew section 702 without safeguards. Congress instead enacted a 10-
day extension so it could reach an agreement on reform needed to 
protect our constitutional rights.
  As in the past, some may argue that that is not enough time to enact 
reform before section 702 expires, but section 702 surveillance 
operates under yearlong certifications approved by the FISA Court. Even 
if 702 were to expire today, the law makes it clear that surveillance 
may continue under the current certification until March of 2027. There 
is no emergency excusing Congress from getting this right.
  Congress should reform section 702 to protect Americans' 
constitutional rights and prevent further abuses. Senator Mike Lee of 
Utah--a conservative Republican--and I have proposed the bipartisan 
SAFE Act to do just that. Our bill includes a warrant requirement for 
conducting searches of U.S. persons' communications collected under 
section 702. This safeguard ensures that a judge, not the executive 
branch of government, approves the search.
  There are exceptions for emergencies and other legitimate security 
needs to ensure that we can protect security and liberty at the same 
time. If the government has a legitimate basis for the search, they can 
make that case to the judge. If they do not, then they should not be 
rifling through private communications of Americans.
  For too long, Congress has renewed section 702 without this basic 
protection from arbitrary government searches. Enough is enough. 
Congress should reauthorize 702 with sensible reforms to protect 
Americans from threats to their security and to their basic 
constitutional rights.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Britt). The Senator from Kansas.

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