[Congressional Record Volume 172, Number 74 (Tuesday, April 28, 2026)]
[Senate]
[Pages S2062-S2064]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FOREIGN INTELLIGENCE SURVEILLANCE ACT
Mr. DURBIN. Mr. President, section 702 of the Foreign Intelligence
Surveillance Act, or FISA, is an important tool for gathering foreign
intelligence and keeping America safe, but this authority of the
government also serves as a backdoor for warrantless surveillance of
Americans right here at home.
The Trump administration, led by Stephen Miller, has asked Congress
for a no-strings-attached extension of section 702. There is a growing
bipartisan recognition of the need to reform this surveillance tool to
protect American privacy and civil liberties.
Section 702 allows the government to collect the private
communications of foreigners overseas without a warrant issued by a
court. The problem is that millions--potentially billions--of innocent
American communications with friends, family members, or coworkers
abroad are being swept up in this collection.
Once collected, the government can read Americans' private texts,
emails and messages and even listen to phone calls without ever
obtaining a warrant from a judge.
To no one's surprise, without court approval for such searches,
administrations of both parties have abused section 702 to spy on
American families, including the families of protesters, Members of
Congress, journalists, and even women on dating apps and rental
tenants. We have every reason to believe that such abuses will
continue, if not get worse, under the Trump administration as it is
using every tool at its disposal to target political enemies and
undermine the basic underpinnings of our democracy.
Last year, the Trump administration conducted more than 23,000--
23,000--warrantless searches of Americans' private phone calls, texts,
and emails, and these are just the ones we know about.
Every Member of Congress should also be concerned about the increase
in so-called ``sensitive queries'' conducted by the FBI under Kash
Patel's leadership. These are warrantless searches of section 702 data
that target religious leaders, organizations, politicians, political
organizations, and journalists. In 2025, the FBI conducted over three
times as many sensitive queries as the Biden administration in 2024. We
don't know whom the FBI has targeted using these sensitive queries, but
we know under Kash Patel's leadership, the FBI has been all too willing
to target political enemies to appease President Trump.
The Trump administration also refuses to release the latest FISA
Court ruling on section 702, which found ``deficiencies'' with how the
administration is conducting searches on Americans.
Rather than telling the American people what those deficiencies in
the program are, the Trump administration is appealing the court's
ruling. The American people deserve to see this opinion before their
House Members and Senate Members vote on reauthorizing section 702.
Senator Lee is a conservative Republican from Utah. He and I are
working together. We have proposed a path forward with the bipartisan
SAFE Act, which would reauthorize section 702 for 3 years, while
including critical reforms to protect Americans' constitutional right.
Our bill would require the government to obtain a judicial warrant
before accessing American citizens' texts, emails, or phone calls that
the government has collected using section 702.
This would ensure independent, nonpartisan oversight of the
government's use of this surveillance approach and stop this never-
ending cycle of misuse under 702. Our warrant would protect Americans'
privacy without jeopardizing national security.
We have expressly included robust exceptions for legitimate security
needs, including for what is known as exigent circumstances, where
there is any threat to life and agents have no time to obtain a
warrant. That, of course, is the response when we talk about changing
this system: You are going to slow it down when we need it the most;
there could be an emergency, and we have to move. We wrote expressly in
our amendment that exigent circumstances could move forward in a state
of emergency.
The SAFE Act would also put an end to the government's practice of
buying our personal data from third-party data brokers without a
warrant. The Department of Homeland Security has reportedly used this
loophole to track protesters in real time under the pretext that they
are ``domestic terrorists.''
You remember the two individuals killed in Minneapolis by ICE? One of
them was identified on the spot as a domestic terrorist--totally
untrue.
If the government wants to spy on Americans, it needs to get a
warrant, court approval. It is based on what we know as the
Constitution's Fourth Amendment protection. Period.
That is why our amendment--our bipartisan amendment--is supported by
conservative Republicans and progressive Democrats alike. The Senate
could take up the SAFE Act and vote on it this week, and I hope we do.
I believe
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there is broad bipartisan support for this bipartisan measure by
Senator Lee and myself.
Congress should also address the ill-advised expansion of section 702
that allows its use for surveillance for noncitizens traveling in the
United States. This provision may be the reason Stephen Miller is the
White House leading advocate for reauthorizing section 702. He
reportedly views 702 as ``critical to a variety of Homeland Security
missions.'' What could that possibly be? Immigration in the United
States, even though this section is expressly focused on foreign
intelligence abroad.
If a reauthorization bill reaches the floor of the Senate, I will
pursue an amendment to limit the government's ability to use section
702 for President Trump's mass deportation campaign.
Some may argue that there is not enough time to enact reforms before
section 702 expires--false. Section 702 surveillance operates under
yearlong certifications approved by the FISA Court. Even if section 702
were to expire this week, the law makes it clear, the surveillance may
continue until March of next year.
There is no emergency excusing Congress from getting this right. This
affects the privacy, potentially, of every American family.
I will vote against any long-term extension of section 702 that gives
this administration--or any administration--unfettered access to
America's communications without a warrant. I urge my colleagues to do
the same.
I ask unanimous consent that the document that I have in my hand be
entered in the Record with my statement just given on the floor of the
Senate.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Brennan Center for Justice]
Section 702 of the Foreign Intelligence Surveillance Act: An Explainer
For too long, this law has allowed the government to evade
privacy protections and spy on Americans. Reform is overdue.
(By Hannah James and Elizabeth Goitein)
Congress will soon vote on the reauthorization of a
surveillance authority known as Section 702 of the Foreign
Intelligence Surveillance Act (FISA), which is set to expire
on April 20. Although Congress passed the law to facilitate
surveillance of the foreigners overseas, the government also
uses Section 702 to spy on Americans--a practice that has
resulted in widespread abuses and made the law deeply
controversial. The upcoming reauthorization is an opportunity
for Congress to enact long-overdue protections for Americans'
privacy.
President Trump is encouraging Congress to renew Section
702 without such protections, known as a straight
reauthorization. Lawmakers from both parties, however, have
expressed opposition to an extension without reforms. At this
stage, it remains unclear whether congressional leadership
will allow proposed reforms to receive a vote--but it is
equally unclear whether reauthorization can move forward
without reforms.
What is Section 702?
Section 702 of the Foreign Intelligence Surveillance Act
authorizes the government to surveil foreigners located
outside the United States. Intelligence agencies identify
foreign ``targets'' for surveillance and direct U.S.
companies like Google, AT&T, and Verizon to turn over the
target's phone calls, emails, and text messages. The
government does not need a court's approval to target a
particular foreigner. Instead, a specialized court called the
Foreign Intelligence Surveillance Court, also known as the
FISA Court, approves general procedures for the surveillance
on an annual basis.
Whose communications does the government collect under
Section 702?
The government may target any foreigner located outside the
United States as long as a ``significant purpose'' of doing
so is to obtain foreign intelligence information, broadly
defined to include ``information related to . . . the conduct
of the foreign affairs of the United States.'' In other
words, the government does not need to suspect the target of
terrorism or any other nefarious activity to collect their
communications.
While the government cannot ``target'' Americans for
surveillance under Section 702, the surveillance
``incidentally'' sweeps in Americans' communications in large
volumes, because Americans communicate with foreigners
overseas. And because targets themselves need not be
suspected of any wrongdoing, the Privacy and Civil Liberties
Oversight Board--an independent agency tasked with ensuring
that the federal government's counterterrorism efforts
respect privacy and civil liberties--has emphasized that
``ordinary Americans may be in contact with Section 702
targets for business or personal reasons.''
For example, the government could target a foreign
journalist based in London who has sources in the British
government if it believes those sources will communicate to
the journalist relevant information about U.S. relations with
the United Kingdom. Any American in touch with that
journalist--friends, family, or colleagues--would then have
their private communications with that journalist swept up in
the process.
How does the government use Section 702 as a domestic
spying tool?
Ordinarily, if the government wants to collect an
American's private communications, it must first obtain a
warrant or a FISA Title I order, which is a type of warrant
issued by the FISA Court in foreign intelligence cases.
Accordingly, to prevent Section 702 from becoming an end run
around the Fourth Amendment and FISA, Congress required the
government to ``minimize'' the retention and use of
Americans' communications that are incidentally collected and
to certify to the FISA Court on an annual basis that it is
not using Section 702 to spy on Americans.
Notwithstanding these mandates, once the government
collects data under Section 702--forgoing a warrant on the
ground that it is targeting only foreigners overseas--it
routinely searches through that data to find Americans' phone
calls, text messages, and emails. The FBI, CIA, NSA, and
National Counterterrorism Center conduct literally thousands
of these warrantless ``backdoor searches'' (which the
government calls ``U.S. person queries'') each year.
This practice is a bait and switch that drives a gaping
hole through the protections of the Fourth Amendment and
FISA. Unfortunately, the FISA Court, which operates very
differently from regular courts and is notoriously
deferential to the government, has permitted this practice,
and Congress gave its own blessing when reauthorizing Section
702 in 2018.
Are backdoor searches constitutional?
The Supreme Court has not addressed the constitutionality
of backdoor searches. However, it has made clear that the
Fourth Amendment, which protects against unreasonable search
and seizure, requires the government to obtain a warrant to
conduct a search, subject to certain narrow exceptions.
Accordingly, advocates (including the Brennan Center) have
long maintained that warrantless backdoor searches violate
the Fourth Amendment.
While the FISA Court has upheld the constitutionality of
backdoor searches, regular federal courts are beginning to
recognize the constitutional infirmities of this practice. In
2019, a unanimous three-judge panel of the Second Circuit
Court of Appeals--the only regular federal appellate court to
rule on the issue--rejected the FISA Court's rationales and
raised constitutional concerns. Two years later, a judge on a
panel of the Tenth Circuit Court of Appeals echoed those
concerns (the other two judges on the panel did not address
the issue). In December 2024, a district court judge held
that the Fourth Amendment requires the government to either
obtain a warrant or cite an applicable exception to the
warrant requirement when conducting backdoor searches, and it
found that the searches at issue in the case were
unconstitutional.
Still, the courts are unlikely to definitively resolve the
constitutionality of backdoor searches in the near future
because regular federal courts rarely have an opportunity to
address the question. That makes it all the more important
for Congress to step in to protect Americans' rights.
How have intelligence agencies abused backdoor searches?
Congress and the FISA Court have attempted to place some
modest limits on the government's use of backdoor searches.
Intelligence agencies, and the FBI in particular, have
habitually violated those limits. In 2022, the FISA Court
observed that ``compliance problems with the FBI's querying
of Section 702 information have proven to be persistent and
widespread.'' Indeed, in March 2022, the government reported
more than 278,000 noncompliant searches of information
obtained through FISA. Moreover, from 2018 through 2024, the
law required the FBI to obtain a warrant before conducting
backdoor searches in a very small subcategory of cases
involving certain criminal investigations. Despite conducting
dozens of these searches during that time, the FBI never once
got a warrant.
The compliance issues have been alarming not only in scale
but also in substance. In recent years, FBI agents have
abused Section 702 to search for the communications of
protesters across the political spectrum; members of
Congress; a congressional chief of staff; a state court
judge; multiple U.S. government officials, journalists, and
political commentators; and 19,000 donors to a political
campaign. NSA agents conducted backdoor searches directed at
women on dating apps and a rental property tenant. These
improper searches underscore the threat that backdoor
searches pose not only to Americans' privacy but also to core
civil liberties, such as freedom of speech and association,
and even to personal safety.
Did Congress fix the problems with Section 702 when it last
reauthorized the law?
In 2024, Congress passed the Reforming Intelligence and
Securing America Act (RISAA), a bill authored by longtime
opponents of Section 702 reform in an attempt to stave off
more meaningful changes. While RISAA included some modest
reforms relating to backdoor searches, none of them solved
the fundamental problem: Section 702 grants the government
warrantless access to Americans' private communications. In
any event, most of these reforms merely codified changes to
internal agency procedures that
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the FBI had previously implemented and that had already
proven to be insufficient to stop abuse.
As unambitious as RISAA's requirements were, it emerged
within months that the FBI was systematically violating them.
In August 2024, Department of Justice overseers discovered
that the FBI had been quietly using a querying tool that
allowed users to access Americans' communications without
adhering to the procedures in RISAA designed to prevent
abuse, such as obtaining attorney or supervisory approval for
backdoor searches, recording the reasons for conducting them,
and subjecting them to internal audits. It took months for
the DOJ to shut down this tool.
In March 2026, however, the FISA Court found that the
problem the DOJ claimed to have fixed in early 2025 is in
fact ongoing--and extends beyond the FBI. Although the
opinion is classified, the New York Times reported that the
use of ``filtering'' tools to perform queries of Americans'
information is an issue ``across the intelligence
community,'' and while the particular querying tool used by
the FBI in 2024 had been discontinued, the bureau is using
``another tool'' with the same functionality.
This systemic violation of multiple provisions of RISAA, on
its own, makes clear that RISAA did not solve the FBI's
compliance problems. It also undermines the claim that RISAA
produced a steep decline in the number of backdoor searches
the FBI conducts. Those making this claim have pointed to the
government's reported statistics for 2024 and 2025. But
because the FBI did not track or count the number of queries
performed using these ``filtering'' tools, the reported data
for 2024 and 2025 is incomplete, and the total number of
queries performed during those years remains unknown. And
because the Department of Justice did not audit these
queries, we simply do not know the extent or nature of any
violations that might have occurred during this period.
How do the current administration's actions impact concerns
about backdoor searches?
The current system of Section 702 oversight relies almost
entirely on executive branch self-policing to prevent,
detect, and report abuses. Although Congress and the FISA
Court also oversee surveillance activities under Section 702,
they do not conduct their own audits. They are thus wholly
dependent on the DOJ and other agencies that receive Section
702 data to conduct rigorous audits of their own backdoor
searches and to report the results promptly, fully, and
accurately.
Yet this administration has gutted the main internal
oversight mechanisms for Section 702. It dismantled the FBI's
Office of Internal Auditing, established in 2020 to improve
compliance with Section 702. It fired all three Democratic
appointees on the five-member Privacy and Civil Liberties
Oversight Board, thus undermining both its effectiveness and
its independence. And it has apparently cowed the DOJ's
Office of the Inspector General into inactivity. Moreover,
dozens of courts across the country have admonished the DOJ
for providing inaccurate, incomplete, or misleading
information. In short, there is little reason to expect the
robust internal oversight and faithful reporting that are
necessary to deter abuse of Section 702.
What can be done to protect Americans from warrantless
government spying?
Bipartisan sponsors have introduced bills in both the
Senate and the House of Representatives that would
reauthorize Section 702 with reforms to protect Americans'
privacy, including a requirement that the government obtain a
warrant or FISA Title I order to access the content of
Americans' communications collected under Section 702. The
warrant requirement proposals all include reasonable
exceptions designed to accommodate legitimate security needs.
For example, no court order would be required in an
emergency, if the subject of the search provided consent
(e.g., where the purpose of the search is to identify
potential victims), or where the search is designed to
identify the targets of a cyberattack.
Under current reform proposals, the court order requirement
kicks in only when the government seeks to access the
contents of a communication. In other words, the government
may check first to see whether a particular American's
information actually appears within the Section 702-collected
data before applying for a court order. This would ensure
that any additional burden on the courts is manageable, and
it would allow the government to use U.S. person queries
without a court order to rule out particular Americans'
involvement in the activities under investigation.
This commonsense solution has had broad bipartisan support
for years. It has been passed twice in the House, and in
2024, it was defeated in the House by a single vote. Polling
shows that 76 percent of Americans support a court order
requirement for backdoor searches.
Would a warrant requirement harm national security?
The national security value of backdoor searches is modest
at best and would not be undermined by a warrant requirement.
The government has provided multiple examples in which
surveillance of foreign targets under Section 702 provided
key information about cyberattacks, espionage, and fentanyl
trafficking. By contrast, it has cited very few examples in
which backdoor searches have been useful.
After a thorough review of all the relevant classified and
unclassified information, the Privacy and Civil Liberties
Oversight Board found in its 2023 report that ``there was
little justification provided to the Board on the relative
value of the close to 5 million [U.S. person queries]
conducted by the FBI from 2019 to 2022.'' in the handful of
instances in which backdoor searches did add value, it
appeared that the government could have obtained a warrant,
gotten the consent of the subject of the search, or invoked
the emergency exception--a point confirmed by the chair of
the Board. A warrant requirement with reasonable exceptions
would protect Americans' rights while preserving the core
national security value of Section 702: surveillance of
foreign targets.
What happens if Congress doesn't reauthorize Section 702 by
April 20?
Although the statute will expire on April 20, Section 702
surveillance operates under year-long certifications approved
by the FISA Court. The law makes clear that these
certifications remain valid until their expiration date, even
if the underlying statute expires. Based on the date of the
last publicly available certification, the government was
scheduled to renew its certifications in March of this year,
which would lock in Section 702 surveillance authority until
March 2027. (Those renewal proceedings have not yet been
declassified.)
Some supporters of a straight reauthorization have
nonetheless expressed concerns that companies that provide
communications services might refuse to turn over targets'
communications to the government if the underlying law has
expired. However, companies do not choose whether to assist
the government with Section 702 surveillance. They are served
with directives, and if they fail to comply with a valid
directive, they face fines of $250,000 per day. The FISA
Court can compel compliance, as it did in 2008 when a company
refused to cooperate during a brief lapse in the statutory
authority.
Congress has ample time to consider and pass reforms.
Failure to do so would deny Americans long-overdue
protections and facilitate continued warrantless domestic
spying by the executive branch.
Mr. DURBIN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. THUNE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Sheehy). Without objection, it is so
ordered.
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