Policy Corner

Don’t Reauthorize Surveillance Powers Without Protecting Americans’ Rights

Author: Molly Powell Posted: Apr 1, 2026

Americans have known for years that their government spies on them; but the full extent of the surveillance is masked. Programs sold to the public as a way to surveil foreign adversaries include very few protections for the rights of American citizens. 

FISA Section 702, one of the United States’ biggest surveillance tools, is up for reauthorization at midnight on April 19, 2026. (Notably, however, the intelligence gathering program is grandfathered in, and would not stop until March 2027.) 702 was passed to surveil the communications of non-Americans for national security purposes. But it resulted in a dragnet of law-abiding Americans’ communications, all of which may be searched and read without warrants. 

Millions of Americans, unsuspected of any crimes, have had their personal communications searched and read without the basic protection of a warrant. This information can be compiled and used to study an individual’s personal relationships, lifestyle, medical history, religious practices, and political opinions. 

AFP has long warned of the dangers posed by donor disclosure laws to First and Fourth Amendment rights. That threat expands exponentially with mass domestic surveillance systems, which reveal not only a person’s financial support for causes, but also personal behavior, location history, electronic search habits, and conversations they had believed to be private. 

Searches under Section 702 must be deemed an intelligence officer to be relevant to a search for foreign intelligence or evidence of a crime. It is worth remembering that the NSA bulk data collection programs exposed in 2013 classified almost every call made by or to anyone in the United States as “relevant” to authorized investigations. 

What Is FISA Section 702? 

In 2008, Congress enacted Section 702 of the Foreign Intelligence and Surveillance Act of 1978. FISA Section 702 authorizes the United States government to conduct surveillance on non-U.S. persons reasonably believed to be outside of the U.S. This includes collecting complete records of a target’s communications, both to and from the target. While Americans are not allowed to be the direct targets of this surveillance, many provisions of the law nonetheless allow for widespread “incidental” collection and search of Americans’ personal information. 

Nearly every American has communications with individuals outside of the U.S. – resulting in a dragnet collection of Americans’ communications gathered into intelligence agencies’ databases.   

Section 702 was passed with an automatic sunset date; but it has been reauthorized multiple times. Reauthorizations have expanded its reach into the intimate lives of law-abiding Americans. 

In April 2024, Congress passed the latest Section 702 reauthorization, which Joe Biden signed into law. It included some limited reforms, but in other ways failed to address central concerns and extended Section 702’s surveillance reach. Notably, despite some minor, albeit much touted reforms, the known searches on Americans increased by 35% from 2024 to 2025. 

The Fourth Amendment of the U.S. Constitution reads, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The First Amendment’s protections for freedom of speech and of the press is rightly understood to apply equally to online speech; so must the Fourth Amendment protect electronic records and virtual communications. 

Top Tier Reforms 

Any reauthorization must include meaningful reforms to protect U.S. persons’ rights. While the following is not a complete list of needed changes, it would constitute major improvements. 

Warrant Requirements for Queries on Americans’ Data  

The highest priority reform for FISA reauthorization is a warrant requirement for searches on Americans’ data. Although an American may not legally be the target of data collection, their data is still collected in large quantities under 702. Intelligence agencies may then conduct “queries” on anything in this database, reading private messages without a warrant. 

In 2021 alone, 3.4 million known warrantless searches were run on Americans. The total number is unknown. Very few of these were known to the individuals whose communications were searched. While the 2024 reauthorization included some minor reforms, the number of warrantless searches of Americans’ data went up by 35% in 2025 compared to 2024. 

Thousands of government employees access this database. FBI agents have repeatedly been caught running searches for personal reasons, such as on their current or former romantic partners.  

Rep. Biggs offered an amendment to the 2024 Section 702 reauthorization, known as the Reforming Intelligence and Securing America Act (RISAA). If passed, it would have prohibited most warrantless searches of Americans’ communications contained in the 702 database. The Biggs amendment failed 212-212.  

Warrant requirements for searches on Americans’ data protect civil liberties, while maintaining the national security tool. This would not affect the initial collection, nor would it apply to non-U.S. persons. 

Public safety must always be protected. We can do so without sacrificing our fundamental rights. 

Close the Data Broker Loophole 

Warrants are a critical protection for individual rights. We must safeguard the spirit of warrant requirements by ensuring that agencies cannot buy their way around the Bill of Rights. Third party data brokers hand them an easy opportunity to do so.  

Data on individuals, including audio recordings of smart home devices, search histories, and geolocation histories, is harvested from their personal electronic devices and sold to data brokers. Data brokers may legally resell the data. In order to circumvent search warrant requirements, government agencies can purchase from data brokers an extensive amount of personal data on law-abiding American citizens. 

Recently, the FBI acknowledged that it purchases cell phone geolocation history of Americans, with no warrants. 

Data brokers exist to collect data on individual users’ electronic devices. The brokers compile the data, which is then sold. While the primary customers are marketing agencies, government agencies purchase large quantities of Americans’ personal data when they would have otherwise been legally required to obtain a search warrant. Most systems do not have an adequate opt out option, which should cause alarm in an era of ubiquitous Ring cameras and Alexas. 

Technology continues to improve at a rapid pace, and Americans increasingly need smartphones to perform basic functions for their employment, medical appointments, and transportation The reach of data brokers continues to expand. 

Political violence in America is becoming more and more frequent. Data brokers provide bad actors with access to sensitive information about lawmakers, political leaders, and law enforcement officers. This includes information which could easily be used to find someone’s physical location. 

In 2024, the U.S. House took a crucial step towards addressing the data broker loophole with the passage of The Fourth Amendment is Not for Sale Act, (though it did not receive a Senate vote).  

The Fourth Amendment is Not for Sale Act aimed “to prevent law enforcement and intelligence agencies from obtaining subscriber or customer records in exchange for anything of value” and “to address communications and records in the possession of intermediary internet service providers.” 

In practical terms, this would mean U.S. persons’ data disclosed to a third party (i.e., a data broker) by a service provider may not be purchased by government agencies. In cases where a court order would have been necessary to obtain the data from the service provider, agencies may not compel these third parties to hand over data. (Data collection of non-U.S. persons is in no way affected by this legislation.) 

Reverse the ECSP Amended Definition 

Among the more controversial revisions to the 2024 FISA Section 702 reauthorization was the Electronic Communication Service Providers (ECSP) Amendment – not so affectionately dubbed the “Make Everyone a Spy Bill”. The amendment significantly expanded the definition of ECSPs. These changes meant a huge increase in the number of American businesses and institutions from which intelligence agencies may lawfully compel the release of communications data. 

As passed in 2008, FISA Section 702 considered ECSPs to be large communications facilitation organizations, such as phone companies, search engines, or social media platforms. The definition of ECSPs is now far broader. Following court cases in which the Biden administration was denied ability to compel release of Americans’ data, the Reforming Intelligence and Securing America Act of 2024 (RISAA) FISA 702 and included an amendment to greatly expand the definition of ECSPs. 

FISA Section 702 allows intelligence agencies to compel ECSPs to release the communications (content and metadata) of specific users, provided they fell under 702’s parameters of allowed targets. 

The amendment expanded legal language to classify “any other service provider who has access to equipment that is being or may be used to transmit or store wire or electronic communications” as an electronic communication service provider. 

Under the ECSP amendment, anyone with basic communications infrastructure equipment (such as a Wi-Fi router, servers, cell towers, or phone line) may now be compelled to turn over information on their fellow Americans. In practice, this means that business owners or nonprofits, if they have phone lines or Wi-Fi routers open to the public, can be forced to give intelligence agencies sensitive information that their visitors sent or received through their equipment. 

A few selection carveouts were included in RISAA, such as certain food service establishments or section 802 dwellings. But it is not enough for the government to pick and choose which business owners or nonprofits are subject to this provision. Additionally, most of the exemptions have work arounds; for instance, while a coffee shop owner might not be compelled to hand over data, the company that maintains the shop’s data is not protected from the ECSP law. 

Expanded Role for the Amici Curiae 

In order to make the aforementioned reforms hold water, we need a legal process that considers multiple perspectives. 

Under FISA, the Foreign Intelligence Surveillance Court (FISC) was created. Its jurisdiction included authorization of Section 702 programmatic surveillance. Initially, they heard nearly exclusively from intelligence agency representatives. However, revelations in the 2013 Snowden leaks caused public outcry over the scope of 702 domestic surveillance. The 2015 USA FREEDOM Act amended FISA to include amici curiae (non-government experts) in certain FISC decisions. 

While this appeared to add a much-needed layer of impartiality, the amici do not have access to full information, they cannot pursue appellate review of final decisions, and their appointment is left to the discretion of FISA judges. The passage of RISAA further limited the kinds of cases in which amici participate. 

Congress should strengthen FISA’s amici process, clarify that courts may review surveillance materials in civil cases, and create a presumption that they should participate in certain particularly sensitive or important matters. 

Further Reading: 

FISA Terms Glossary

FISA Section 702: 
Warrant Requirements, Queries, and Backdoor Searches: 
Data Broker Loophole: 
Electronic Communication Service Provider (ECSP) Amended Definition 
FISA Court:  

Molly Powell is a Senior Policy Analyst at Americans for Prosperity.