Congress is in a high-stakes stalemate. The question is whether to reauthorize Section 702 of the controversial Foreign Intelligence Surveillance Act (FISA). Although FISA was designed to conduct foreign surveillance, loopholes in the law have allowed for thousands of warrantless searches of Americans’ calls, emails, and text messages — and staggering abuses by administrations on both sides of the aisle.
Despite a pressure campaign over the self-imposed deadline to reauthorize Section 702, House Speaker Mike Johnson (R-LA) and surveillance hawks twice failed to pass what amounts to a reauthorization without reform. In a dramatic vote during the pre-dawn hours this morning, a bipartisan majority of the Senate rejected a third effort to pass reauthorization without meaningful reform, voting down even proceeding to debate the proposal before them.
Reform is long overdue. The failure of Congress to keep up with massive leaps forward in technology has endangered the privacy rights of millions of Americans through the data broker loophole, which allows private companies to amass, organize, retrieve, and sell to the government troves of information about individual Americans at a scale that would have been unimaginable just a decade ago.
Now is the time to pass a reform bill that closes that loophole and requires a warrant for backdoor searches. Currently, Congress has no path to reauthorization without real reform, and that means it is essential for members to hold the line: The latest iteration of FISA reauthorization is once again anything but reform. The peoples’ representatives in Washington cannot hand this and future administrations a blank check to surveil Americans.
Where We’ve Been: A Brief Recap
In April, FISA reauthorization efforts devolved into chaos when the House failed to pass the “clean” 18-month reauthorization requested by President Donald Trump and his deputy chief of staff for policy and homeland security, Stephen Miller. To their credit, members of the House also refused to pass a five-year reauthorization that was misleadingly styled as a reform bill. A bipartisan majority rejected both bills when the speaker attempted to pass them in the dead of night. In the race to prevent FISA statutory authorities from lapsing, Congress passed a 10-day extension.
Things did not improve in the days after, mostly because of a backed up legislative calendar and Johnson’s insistence on putting forward what amounted to a retread of the “fake” reform bill that members had previously rejected. Cutting deals that allowed for the procedural votes necessary to pass legislation, the speaker was bailed out of another defeat with the support of 42 Democratic members of the House, passing a FISA bill that was dead on arrival in the Senate.
The result of this fiasco was passage of a 45-day extension of FISA statutory authority. The extension, however, came with strings attached: Senator Ron Wyden (D-OR) forced an agreement that resulted in the Senate Intelligence Committee leads, Chairman Tom Cotton (R-AR) and Ranking Member Mark Warner (D-VA), requesting the declassification of a March 2026 FISA Court opinion from the director of national intelligence and acting attorney general. That document reportedly highlights new FISA abuses, including improper searches of Americans’ information by agents at agencies like the FBI, CIA, and NSA. The Senate Intelligence Committee gave the administration 15 days for the document’s declassification.
The attorney general and director of national intelligence have blown past that 15-day response deadline.
Where We Are Now: This Moment Is Unprecedented
Substantively, this FISA reauthorization fight has new and unique characteristics that make the stakes higher than they have been in the past: the explosion of artificial intelligence capabilities in exploiting the data broker loophole, which allows for detailed dossiers of Americans to be created with ease; the ongoing failure to fix a clearly overbroad ECSP provision that was hastily added during the 2024 reauthorization and allows electronic service providers to be forced to hand over sensitive information on customers; and the lawlessness of the current administration.
Simply put, Congress cannot give this or any future administration the unchecked ability to use surveillance tools as it sees fit. We have seen what happens when Congress fails to defend the Constitution. Surveillance power abuses by the Biden administration and ongoing abuses by the Trump administration show that any of us could be targeted while exercising our constitutional rights.
The administration has been clear that, when it comes to surveillance, constitutional rights are up for negotiation.
Like previous administrations, the Trump White House has failed to address a secret interpretation of law, one that has never been disclosed publicly but apparently impacts Americans’ privacy. It has also failed to even keep up in reporting on Section 702 compliance. But we must also recognize that, while surveillance powers have been abused by administrations from both parties, what we’re seeing from the current president is more dangerous than what we’ve seen in the past. That’s because this administration has been further dismantling the guardrails that protect Americans’ private data within government agencies even as it has used the power of the government to punish those with whom it disagrees.
The recent appointment at the Office of the Director of National Intelligence radically shifts the landscape for reauthorization. In a dramatic escalation that triggered swift bipartisan criticism, Trump appointed Federal Housing Finance Agency Director Bill Pulte to serve as acting director of national intelligence. Pulte reportedly has a history of firing independent voices within an agency and weaponizing government to target the president’s political opponents. Given the lack of accountability within the warrantless surveillance space, Pulte’s appointment — which could last as long as 210 days under current law — must be considered the starkest illustration yet of why surveillance powers must be reined in.
In fact, the administration has been clear that, when it comes to surveillance, constitutional rights are up for negotiation. Trump said as much when he tried to gather support for reauthorizing FISA by saying, “I am willing to risk the giving up of my Rights and Privileges as a Citizen for our Great Military and Country.”
Where We’re Going: If Not Now, When?
This approach from the White House has contributed to bipartisan momentum for reform in Congress led by unlikely partners — the Freedom Caucus and an overwhelming majority of House Democrats, led by the Tri-Caucus. This bipartisan consensus centers on two core reforms: closing the backdoor search loophole and closing the data broker loophole.
There is bipartisan legislation that would reform FISA. The Government Surveillance Reform Act, led by Wyden, and the SAFE Act, led by Senators Dick Durbin (D-IL) and Mike Lee (R-UT), would address fundamental abuses directly tied to FISA and the exploitation of the data broker loophole.
In 2024, an amendment vote on a warrant requirement for backdoor searches failed on a 212-212 tie. The Fourth Amendment Is Not For Sale Act — closing the data broker loophole — passed the House on a bipartisan basis. Today, the House and Senate are in a stalemate because leadership doesn’t have the courage to allow reform votes. Congress must force leadership’s hand in both chambers in this moment if it wants to have a chance to reform FISA.
The Senate attempted to pass a three-year extension of FISA with no real reforms, but now that effort is stalled. Members must understand that this likely becomes the last opportunity to put guardrails on the surveillance powers the Trump administration wields.
The urgency to act is greater than ever before. Although there is no true immediate deadline for this reauthorization, given the recertification of FISA by the FISA Court, the legislative calendar quickly becomes challenging for both chambers: Floor time will be needed for a possible reconciliation bill, the NDAA, and continued war powers resolutions if the current impasse in the Iran War continues indefinitely.
If FISA reform is pushed further into the summer, it will face a looming summer recess. Once members return after Labor Day, the midterm election cycle will be in full swing, meaning even less time than usual for legislative action and even greater “FISA fatigue.”
The house is on fire. Congress must respond.
A sense of urgency is in reformers’ favor. Leadership wants to clear time for other priorities. And those itching to relegate addressing the data broker loophole to longshot standalone legislation know that; there is no better time to pass reform than during a must-pass reauthorization vote.
Just as urgently, the abuses associated with FISA and the data broker loophole need to be stopped. How long should Congress wait to stop the administration from expanding its collection of Americans’ personal data? Will Pulte follow his reported pattern from FHFA and use his power to target political opponents? Does anyone believe that this debate will be resolved next year, when legislative power and priorities may have shifted and it may be even more difficult for a potentially divided government to work together on anything?
If an eventual reauthorization is in fact long-term and lasts into a new administration, how will Republicans be sure that a new administration will not target them if their party is out of power? Congress should allow no longer than a year for any reauthorization until it is proven that the abuses have stopped. Simply put, no president should be able to haphazardly undermine the legitimate and important national security work that happens each day, and FISA being reauthorized without reform gravely threatens that work and our constitutional order.
Only bipartisan action can end the current stalemate, but members must understand that an enormous amount of Congress’s future ability to provide oversight and accountability will be decided in this moment. Ceding this power now, regardless of whether Pulte remains as acting director of national intelligence, will allow for an explosion of unaccountable mass surveillance that could target anyone or any group at the whim of whoever heads the federal executive branch. The only congressional response that will prevent that is requiring a warrant for backdoor searches and closing the data broker loophole.
In the coming days, Congress will consider its next steps on FISA reauthorization. Members of Congress must reject any legislation that has a faux warrant requirement, fails to close the data broker loophole, or attempts to “reform” FISA by placing more trust in the executive branch to police and report on itself.
If the appointment of a dangerously unqualified Intelligence Community head, ignoring widespread and bipartisan concern from Congress, isn’t enough to spur reform, the warrantless surveillance with impunity that is eventually unleashed will lie at the feet of the members of Congress that effectively vote for it.
The house is on fire. Congress must respond. The moment for real reform is now.
