Defending Liberty and Defeating Terror: Principles for FISA Section 702 Reauthorization

The  ACLJ stands firmly in defense of national security, but not at the expense of the Constitution. A government powerful enough to keep us safe must also be restrained enough to keep us free. That’s why we affirm the federal government’s highest calling: to secure the blessings of liberty, both by protecting Americans from foreign threats and by guarding against domestic overreach.

One area where this balance must especially be safeguarded is in the application of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Originally intended as a narrow tool to monitor foreign intelligence targets abroad, Section 702 has been misused to conduct warrantless surveillance on American citizens. These abuses occur without probable cause, without judicial oversight, and without consequences and represent a direct violation of the Fourth Amendment.

Congress should ensure strong constitutional protections are in place when reauthorizing and reforming Section 702 of FISA before it expires on April 20, 2026.

Spying on Americans Without a Warrant

Section 702 was designed to authorize the collection of foreign intelligence by targeting non-U.S. persons located outside the United States. But the reality is far different. As we’ve uncovered through lawsuits and legal action, the FBI and other agencies have exploited this program to conduct warrantless searches on Americans, including clergy, political donors, and even sitting Members of Congress.

The ACLJ has been engaged in Freedom of Information Act (FOIA) litigation showing that the FBI conducted unlawful backdoor searches on Americans. These were not foreign terrorists. These were American citizens protected by the Constitution.

Earlier internal disclosures revealed that the FBI conducted millions of warrantless searches of Americans’ communications held in Section 702 databases. The National Security Agency has likewise faced scrutiny for failing to bring certain collection practices into constitutional compliance, particularly with respect to the “about” collection that incidentally captures U.S. person communications.

The ACLJ has filed multiple FOIA lawsuits exposing surveillance abuses, including our ongoing litigation related to the FBI’s targeting of Catholic churches and traditionalist believers as potential extremists. These cases unearthed how federal agencies bypassed constitutional limits in pursuit of ideological agendas.

Without warrants and probable cause, this is not intelligence gathering. This is unconstitutional surveillance.

These abuses are not theoretical. They have been documented by courts, oversight bodies, and independent watchdogs. There is a clear pattern in which a surveillance tool intended for foreign threats has been repurposed as a domestic intelligence source in ways that conflict with the Constitution.

Constitutional Liberty Is Not Optional

The Fourth Amendment is not a suggestion. It is a shield against precisely this kind of abuse:

“The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .”

Our government officials may not bypass the Constitution in the name of convenience. If our intelligence agencies want to query the communications of American citizens, they must go to a judge, demonstrate probable cause, and obtain a warrant. That is the American way.

The 2024 reauthorization process included some reforms that must be continued, but additional changes should be considered this year to better protect the rights of Americans.

Principles for FISA Section 702 Reauthorization

We support the reauthorization of Section 702 with safeguards firmly in place:

Establish a Warrant Requirement

No federal agency should be permitted to access or query data collected under Section 702 for information on U.S. citizens or lawful permanent residents without a warrant issued by a judge based on probable cause. Congress should adopt a warrant requirement with extremely limited and constitutionally constrained exceptions, such as imminent threats to life and bodily harm, “defensive queries” in which the government has consent from an American, or searches for known cybersecurity threat signatures. Any exception must require signature by the Attorney General and Deputy Attorney General, and every request must be memorialized in a file provided to relevant Senate and House committees periodically.

Narrow the Definition of Electronic Communications Service Providers

Section 702 of FISA authorizes the government to compel “electronic communications service providers” to assist in surveillance targeting non-U.S. persons abroad. The 2024 reauthorization bill expanded this definition to include a broad range of private businesses that were never previously subject to such obligations. Entities like hotels, coffee shops, private office buildings, and even landlords offering Wi-Fi could be forced to participate in surveillance operations, often without a clear understanding or meaningful legal recourse, and under a “gag order” not to disclose the government’s demand.

This definition blurs the line between traditional telecom companies and everyday commercial actors, threatening the privacy of millions of Americans and raising serious Fourth Amendment concerns. Congress should act to restore a narrow, commonsense definition of “electronic communications service providers” that limits compelled cooperation to actual telecommunications and internet infrastructure companies to ensure the government’s surveillance does not stretch into virtually every corner of American life.

Restrict Government Purchases of Location Data

A loophole in current surveillance law is the federal government’s ability to purchase Americans’ sensitive location data from third-party brokers without a warrant or judicial oversight. Agencies have increasingly turned to commercial data marketplaces to sidestep these protections and gain access to Americans’ movements by tracking individuals’ visits to churches, medical clinics, schools, and even their own homes. This practice amounts to warrantless surveillance by proxy and violates the spirit, if not the letter, of the Fourth Amendment.

The Supreme Court has already recognized in Carpenter v. United States that individuals have a reasonable expectation of privacy in their location data, especially when it paints a detailed picture of their lives. Any reauthorization of Section 702 must include strict prohibitions on government agencies purchasing Americans’ location data without a warrant. Congress has both a constitutional and moral duty to ensure that the government cannot buy its way around the Bill of Rights.

Enforceable Guardrails for the Foreign Intelligence Surveillance Court

In a constitutional republic, no institution should operate without meaningful checks and balances. That’s why true transparency and congressional oversight of the Foreign Intelligence Surveillance Court (FISC) are not just prudent but also essential. The FISC operates behind closed doors with limited accountability, reviewing sweeping surveillance authorizations under Section 702 of FISA without the public scrutiny that ensures fidelity to constitutional principles.

When Americans hear that their communications may be incidentally collected, or that government agencies have queried their data without a warrant, they deserve to know that there is a real, functioning check on that power. Congress should have full, timely access to FISC opinions, procedures, and proceedings – not filtered summaries or conditional briefings approved by the Executive branch. Anything less invites abuse.

But oversight alone is not enough. The FISC’s structural imbalance means the government is virtually always the only party in the room. This must be corrected through an expanded role for amici curiae, independent legal experts appointed to challenge government claims and offer perspectives on civil liberties and statutory interpretation. These amici should be present for all significant cases, particularly those involving novel legal theories or constitutional implications. Empowering amici to access relevant case files and submit written arguments is not a threat to national security. It is a safeguard for the rule of law. Americans deserve a surveillance system that is both effective and accountable. Congress should act to ensure it is both.

Ensure the Prohibition on “About” Collections Remain

The collection of communications that are “about” a target, even if neither the sender nor the recipient is the target, opens the door to mass intrusion. This type of bulk collection under Section 702 of FISA historically enabled the National Security Agency to vacuum up massive quantities of Americans’ private communications, including emails, texts, or phone calls, without a warrant, merely because they reference a foreign person of interest. While “to” and “from” collections involve direct contact with a target, the “about” collection casts a far wider and more dangerous net, creating serious Fourth Amendment concerns and violating the principle that Americans are innocent until proven guilty. Congress must ensure American citizens remain protected from this intelligence collection.

Maintain Independent Audits and Real Penalties

Congress must maintain the requirement for independent audits of all Section 702 queries involving U.S. persons and establish real consequences for violations, including criminal referrals and individual accountability. Misuse must carry legal weight, not just bureaucratic wrist-slaps.

Sunset With Mandatory Oversight

Any reauthorization should once again include a short-term sunset with mandatory congressional review and declassification requirements to ensure the public knows how often this tool is used and when it is abused.

The Deeper Issue Is Trust

When the government secretly weaponizes intelligence powers against its own people, we lose more than privacy. We lose trust. And that trust, once broken, is exceedingly difficult to restore. That is why the ACLJ continues to fight to expose any abuse within the FBI and other federal agencies when they refuse to safeguard our constitutional protections.

That is also why we are still fighting for the release of records and information related to Jack Smith’s Arctic Frost investigation that was sanctioned by the Biden Administration. This secretive operation reportedly involved warrantless surveillance of U.S. citizens and political opponents under the guise of national security. If true, it would represent one of the most dangerous overreaches of prosecutorial power in recent history.

We have seen what happens when surveillance powers are turned inward. From spying on clergy to targeting conservative groups to investigating school board parents like terrorists, the pattern is clear: Unchecked power corrupts and centralized surveillance power is especially dangerous.

Conclusion: Protect American Citizens

Section 702 has played a role in protecting our nation, but no tool should ever be allowed to operate outside the bounds of the Constitution.

We call on Congress to uphold the rule of law. Reauthorize Section 702 only if it respects the rights of Americans, restores the role of the judiciary, and reins in Executive overreach.

We can defend our country without surrendering our liberty.