Congress has reopened a high-stakes fight over whether U.S. intelligence agencies should be allowed to search Americans’ communications without a warrant, with some lawmakers scrutinizing sweeping surveillance powers long criticized for pushing constitutional limits.
Four witnesses testified during a hearing on Thursday, Dec. 11, in front of the House Judiciary Committee, encouraging federal lawmakers to take a stronger stand on Americans’ privacy by setting stricter requirements on government searches under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 of FISA allows U.S. intelligence agencies to collect communications of foreign targets overseas without individual warrants, while also permitting later searches of that data that can include Americans’ emails, texts and phone calls.
Lawmakers are weighing whether to reauthorize or overhaul the authority ahead of its expiration, as critics warn the program enables warrantless searches of U.S. communications without court approval.
Debate over expansive surveillance authorities traces back to policy decisions made after the Sept. 11 attacks when national security officials pushed for broader intelligence collection powers to track terrorist networks overseas—a legal framework that continues to shape today’s legal and political battles over spying authorities.
Military.com reached out for comment to the White House, Department of Justice, the Office of the Director of National Intelligence, and the FBI.
Accessing Americans’ Data
Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice at New York University, warned lawmakers that the issue is structural rather than accidental.
“The fundamental problem with Section 702 is that the government is also using it as a rich source of warrantless access to Americans’ communications,” Goitein wrote.
“The government is using it as a rich source of warrantless access to Americans’ communications.”
She was among the four witnesses last week, joined by Gene Schaerr, general counsel for Project for Privacy & Surveillance Accountability; James Czerniawski, head of emerging technology policy at the Consumer Choice Center; and Brett Tolman, executive director of Right on Crime.
In written testimony submitted to the committee, Goitein said Americans’ communications are routinely collected when they interact with foreign targets and later are searched by U.S. agencies without a warrant.
Government transparency reports show more than 13,000 known searches in 2024 aimed at identifying Americans’ information in Section 702 databases, according to the Office of the Director of National Intelligence. Incomplete tracking means the actual number may be higher.
The scale of modern intelligence collection has also been underscored by disclosures detailing how U.S. surveillance capabilities track foreign leaders and adversaries abroad, highlighting the breadth of electronic intelligence authorities now in use.
Modern digital surveillance systems, often developed with private-sector technology and data infrastructure, have intensified global debates over oversight and civil liberties, as governments increasingly rely on expansive data collection tools with limited transparency.
US Policies ‘Very Flawed’
Section 702 supporters argue that authority remains essential for tracking terrorists, hostile foreign governments and cyber threats. Meanwhile, critics say the same tool has evolved into a mechanism that allows unfettered government access to Americans’ private communications without judicial oversight.
Czerniawski told Military.com that repeated compliance failures have eroded trust in the intelligence community, and that Section 702 has strayed far from its original purpose.
“We have seen the intelligence community time and time again violate the law.”
“I believe that FISA, and particularly Section 702, are very flawed programs in practice,” Czerniawski said. “While they were set up as a way to have a legal process to conduct surveillance, we have seen the intelligence community time and time again violate the law, using the surveillance authorities of 702—which are meant for non-U.S. persons, to spy on U.S. persons.”
Czerniawski pointed to publicly disclosed instances in which Section 702 data was queried in connection with protesters, campaign donors and members of Congress.
FISA Being a ‘Domestic Source’
Witnesses urged lawmakers to close what critics describe as the backdoor search loophole, which allows agencies to search previously collected data for Americans’ communications without court approval.
India McKinney, director of federal affairs at the Electronic Frontier Foundation, told Military.com that Congress must impose clearer limits.
“Congress should end the many years of overreach by the U.S. Intelligence Community by requiring warrants for the collection or capture of any communication involving an American,” McKinney said. “While Section 702 was first sold as a tool necessary to stop foreign terrorists, it has since become clear that the government uses the communications it collects under this law as a domestic source.”
Partisan Divide Over Surveillance Reform
Democrats on the House Judiciary Committee came away from the hearing emphasizing civil liberties, transparency and judicial oversight. Republicans, on the other hand, focused on accountability failures while cautioning against changes they said could weaken intelligence operations.
Rep. Jamie Raskin (D-MD), a ranking member, used his opening statement to warn that unchecked surveillance authorities risk undermining constitutional protections.
He argued that Congress must strengthen guardrails to prevent warrantless searches of Americans’ communications while still allowing intelligence agencies to address legitimate national security threats.
Surveillance Expansion Alarms Privacy Advocates
Goitein also warned against recent changes that broadened the definition of companies required to assist with surveillance—a move she said could rope in businesses far removed from intelligence work.
Czerniawski echoed those concerns, telling Military.com that Congress should roll back the expanded definition of electronic communications service providers and strengthen independent oversight at the Foreign Intelligence Surveillance Court.
“When Americans find out about these abuses after the fact and discover there has been no one held accountable, it erodes their trust in the government,” Czerniawski said. “An intelligence agency that lacks public trust is less effective, not more.”
Section 702 is set to expire next year unless Congress acts. Intelligence agencies are pressing lawmakers to preserve the authority while civil liberties advocates argue meaningful reform is overdue.
Story Continues
Read the full article here