Closing the Data Broker Loophole: A Q&A With a Privacy Expert

Last week ushered in some rare bipartisan agreement when, in the early morning hours of April 17, Republican and Democratic members of the U.S. House of Representatives joined together and insisted on reforms before reauthorizing Section 702 of the Foreign Intelligence Surveillance Act (FISA). Instead of extending FISA for another 18 months, the House, and later the Senate, passed a short-term reauthorization, setting the new deadline for reauthorization for April 30.

We sat down with The Constitution Project’s Policy Counsel Don Bell to learn more about the current impasse, why FISA Section 702 is so controversial, and why reforms — including closing the data broker loophole — must be an urgent priority for Congress.

Q: Let’s begin with the House vote on FISA reauthorization. What happened?

Last week, after it looked as if House Republicans didn’t have the votes to advance a rule on an 18-month “clean” reauthorization of FISA, Speaker Mike Johnson (R-LA) and the White House entered into negotiations with some members of the House Freedom Caucus on a new bill. The text the speaker produced in the eleventh hour, however, was anything but a reform to the surveillance law.

Among other things, it included a five-year extension of Section 702 of FISA, a so-called “fake warrant” requirement, and no meaningful changes that would address backdoor searches, where the government searches Americans’ communications without a warrant, or the data broker loophole, which allows agencies to buy information instead of securing a warrant. Over multiple votes in the early morning of April 17, a bipartisan majority of the House rejected both Speaker Johnson’s plan and the clean 18-month extension. The takeaway was clear: the only path forward is some level of reform.

Q: Is 10 days enough time to pass reforms? Doesn’t the danger of letting Section 702 lapse outweigh the need to make changes?

A similar argument resurfaces each time Congress considers FISA reauthorization: Section 702 lapsing would endanger national security, so Congress should truncate its debate on reform and oversight and continue with business as usual. That’s simply a misleading argument.

The law specifically allows for orders, authorizations, and directives to continue with court certification, and with an annual recertification issued last month in a classified ruling, the government can continue its vital intelligence activities through March 2027. Congress has the time it needs to get this right.

Members of Congress should ask themselves: Why is it that every time Congress is required to reauthorize a controversial law we know has led to abuses, even with the minor changes we’ve made, we are told there is no time to debate and include real reform?

Q: Section 702 of FISA is reauthorized periodically by Congress. What makes this moment different from 2024 reauthorization?

Where to start? We are in a vastly different place from where we were in the 2024 battle for reform and reauthorization. The first and most important thing that stands out is the bipartisan nature of reform efforts. Among Republicans in the House, the House Freedom Caucus has led the effort for reform, seeking warrant requirements for Section 702 searches that sweep up Americans’ communications and the closure of the data broker loophole.

Democrats in Congress, led by the Congressional Hispanic Caucus, the Congressional Asian Pacific American Caucus, and the Congressional Progressive Caucus, also called for closing the data broker loophole, fixing the backdoor search loophole, and repealing the “visa vetting” provision from RISAA that passed in 2024. The Congressional Black Caucus also called for reform.

It’s no surprise that this bipartisan push for reform has led to bipartisan and bicameral bills, such as the bicameral Government Surveillance Reform Act (S.4082/H.R.7901), the bipartisan SAFE Act (S.4280) led by Senator Mike Lee (R-UT) and Senator Dick Durbin (D-IL), and the Protect Liberty and End Warrantless Surveillance Act of 2026 (H.R.7816) led by Representative Andy Biggs (R-AZ) and supported by several members of the Freedom Caucus.

This increased congressional support for reform comes alongside a shift in public understanding of and attention to FISA and the data broker loophole. Given the rapid advancement of artificial intelligence, it’s no surprise that there’s greater acknowledgment of the need for greater protections from surveillance.

This year, as well, many in Congress have pushed back against some of the foundational arguments that have been used to justify reauthorization in the past. For example, even after President Trump said he would be “willing to risk the giving up of my Rights and Privileges as a Citizen for our Great Military and Country,” members of Congress from both parties explicitly recognized that Americans don’t have to choose between their security and their freedom.

Q: Artificial intelligence has been cited as a key reason why there is a more intense bipartisan effort for reform now. How does AI factor into this?

The role of artificial intelligence is central to many of this year’s concerns, and it represents a profound shift from the world of just two years ago. In a nutshell, AI allows for mass surveillance at a level and scale not possible previously. In the past, the analysis of massive datasets would require software, yes, but more importantly it would require a large staff to manage the data. That’s simply not the case anymore.

In a recent demonstration to Capitol Hill staff, we were able to show how a simple AI agent could develop a dossier and location mapping on an individual in seconds using information available for purchase from data brokers. This only scratched the surface of surveillance capabilities, as the federal government has access to more advanced tools.

Q: So, you’re saying AI makes the data broker loophole more dangerous?

Profoundly more dangerous. Arguments that closing the data broker loophole should be disconnected from FISA reform fail to acknowledge a key aspect of why closing the loophole is so important: There are virtually no rules that regulate how government agencies protect Americans’ privacy when buying information from data brokers.

The fact that data brokers, which play a key role in NSA data collection, have no guardrails or oversight written into this foundational surveillance authority is the result of Congress failing to pass laws that kept up with technological advances, even before the widespread adoption of AI. In some of the rare cases where Congress has required agencies to develop policies that would protect Americans’ privacy around personally identifiable information, agencies under multiple administrations have ignored the law. As the pace of technological innovation — and particularly AI — increases, it’s more important than ever that Congress step in to protect our rights.

Q: What happens if the loophole isn’t closed now?

The stakes are high. Simply put: Congress would be writing a blank check to this administration to engage in warrantless mass surveillance supercharged by AI, and it would be approving a blueprint for future administrations to target and surveil as they please.

Q: What’s the solution?

Congress made it clear in last week’s early morning series of votes that it’s high time for reform to be written into FISA. Nobody doubts the very real national security interests that the federal government has in preventing terror attacks, which is why the legislation noted above simply seeks to apply the Fourth Amendment.

If the government wants our most sensitive data, it should get a warrant — just as it does in countless other instances in the mundane and high-stakes criminal investigations that are conducted every day.

The Fourth Amendment is not optional, and as technological advances threaten to fundamentally change the relationship between the people and their government, this moment presents an opportunity for the 119th Congress to come together across party lines and ensure that there are real guardrails and oversight in place to prevent future abuse. The AI industry acknowledges this. Many members of Congress acknowledge this. Civil society acknowledges this. Now is the time for reform.