WASHINGTON–As Congress fights over extending a key federal surveillance authority, experts and privacy advocates warn of loopholes that could threaten the civil liberties and privacy of U.S. citizens.
The provision now under debate grants the power to surveil people abroad, but that also includes warrantless access to their communications with Americans.
That practice, often referred to as a backdoor search, has drawn opposition from privacy advocates and lawmakers of both parties, while others in Congress and U.S. intelligence argue it is necessary to identify foreign threats.
“What’s at issue is whether Congress will continue to provide the FBI, the NSA, the CIA, with warrantless access to Americans’ communications … and whether that’s consistent with constitutional principles and American civil liberties,” said Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice, a law and policy organization based in New York University.
“That’s really the heart of this,” she said in an interview with Capital News Service.
The Foreign Intelligence Surveillance Act, enacted in 1978, has been amended repeatedly, most recently through the 2024 Reforming Intelligence and Securing America Act, known as RISAA. That act renewed the government’s authority to conduct targeted surveillance of foreign persons’ communications carried under FISA Section 702.
That authority is up for debate once again now that its expiration nears.
Earlier this month, the Senate cleared a 10-day stopgap. While lawmakers try to settle on a longer-term extension, the landscape of surveillance technology is changing rapidly.
Safeguards under scrutiny
Past amendments of FISA and Section 702 installed safeguards meant to restrain domestic surveillance. Supporters of a clean reauthorization insist that those have been successful since the start of President Donald Trump’s second term.
Rep. Jim Jordan, R-Ohio, said the number of recorded violations was as high as 278,000 before the last extension under RISAA, but fell to only 127 since the start of Trump’s current term.
“All the abuses happened when Democrats were in the White House,” Jordan testified at a House Rules Committee hearing this month.
The provision is key for national security, Jordan said, especially in the midst of U.S. military operations abroad, like in Iran and Venezuela.
“We want our government to listen to what bad guys are doing overseas,” Jordan said.
But lawmakers like Rep. Jamie Raskin, D-Md., warned against trusting that oversight.
“Those reforms now depend on Trump administration officials to respect the law,” Raskin testified at the same hearing. He added they “leave the administration in charge of policing its own abuses of this sweeping authority.”
That administration has gutted entities created for that very purpose.
In May 2025, FBI Director Kash Patel shuttered the agency’s Office of Internal Auditing that was created to reveal and mitigate violations of surveillance authorities such as Section 702. Trump also fired all three Democrats on the five-member Privacy and Civil Liberties Oversight Board in January that year.
Goitein said the backdoor search loophole allows officials to sidestep what little oversight is left.
“Since the last reauthorization of 702, we know that the FBI and other agencies have been systemically violating some of the safeguards that were enacted in RISAA, by using filtering tools that allowed them to run U.S. person queries under the radar,” Goitein said. “That means not tracking them, not counting them, not auditing them, not getting supervisory approval or attorney approval for them, not recording the reasons for them.”
“We have no idea what abuses might have taken place over the last couple of years, because they weren’t being audited,” she said.
The backdoor search loophole isn’t the only concern raised by privacy advocates when it comes to the legality of U.S. domestic surveillance. They also warn that the government purchases sensitive information from third-party data brokers.
That trend is well documented.
In 2024, Sen. Ron Wyden, D-Ore., released documents confirming that the NSA purchases and uses personal U.S. data that is commercially available. In March this year, Patel said in an intelligence hearing that the FBI does the same thing.
Though the data broker loophole isn’t within the purview of Section 702, it’s just as central within the debate over U.S. surveillance power.
“Both section 702 and the data broker loophole are ways in which the government accesses Americans’ Fourth Amendment, protected information without a warrant,” said Goitein. “So what sense would it make to close one of those doors and leave the other one open?”
Those concerns were shared by protesters who marched outside the Capitol earlier this month, dressed as surveillance cameras and carrying signs that said things like, “NO WARRANT, NO DATA! NO ON 702!”
But advocates like them aren’t just motivated by how surveillance powers have been used so far. They’re also concerned with how rapidly advancing technology like artificial intelligence could expand those powers further.
The protesters were members of QuitGPT, a group that organizes demonstrations and urges user boycotts of ChatGPT, the large-language model produced by OpenAI. They oppose that company in particular because of the deal with the Pentagon it struck at the end of February.
At the time, OpenAI agreed to let the Pentagon use its AI software “for any lawful purpose,” including mass surveillance. After heavy backlash and record numbers of users uninstalling, the company amended the language of the agreement to add limitations against surveillance and weapons use.
Still, a senior robotics staff member publicly resigned days later, and advocates continued their opposition to the threat of the growing industry’s ties with government intelligence.
“OpenAI is a really clear example of the dangers of an unregulated AI industry in combination with authoritarianism,” said Jamie Minden, volunteer advisor for QuitGPT and executive director of climate advocacy group Zero Hour.
In an interview with CNS, Minden pointed to donations from OpenAI co-founder and president Greg Brockman and his wife, who together delivered nearly a quarter of the more than $100 million raised by Trump’s super PAC in the second half of 2025.
“I am also very concerned that many members of Congress are not standing up to fight while they still have power,” Minden said. “I’m really hopeful that the work that QuitGPT is doing will remind these members of Congress that we are watching them.”
The Fight on the Hill
A vote on an 18-month reauthorization had been the main focus of discussion as the provision’s sunset grew nearer and nearer. When Speaker Mike Johnson, R-La., finally called the House into session late at night earlier this month, a five-year extension was put forward instead.
“I’ve had about 90 seconds to review this product that we were supposed to have been working on for the last several months,” Raskin, a leading advocate of an amendment requiring a judicial warrant, said on the floor that night. “They went from a two-year clean reauthorization to a five-year dirty deal.”
Earlier that week, Trump had attempted to rally Republicans around a “clean extension of FISA 702” on a Truth Social post.
“I am asking Republicans to UNIFY, and vote together on the test vote to bring a clean Bill to the floor,” he wrote in the post. “We need to stick together when this Bill comes before the House Rules Committee today to keep it CLEAN!”
The Republican-led committee did just that, backing Jordan who testified on behalf of the president’s position. Raskin urged a warrant amendment, prompting the Democratic minority to plea for a vote.
“We all talk about democracy … but under Republican leadership, this has become the most closed Congress in history. More bills go to the floor with no amendments in order,” said Ranking Member Jim McGovern, D-Mass., at the hearing. He asked Jordan, “I mean, why can’t we in the House decide this?”
“The speaker doesn’t want to,” Sean Vitka, executive director of Demand Progress, told CNS. “This is an astoundingly frustrating detail about these fights … It’ll be T-minus a week, and then they’ll say, oh my god, there’s no time, there’s no consensus bill, we have to move a clean reauthorization.”
In the hearing, Jordan insisted on that clean reauthorization. He answered McGovern, “I am satisfied with the position we are in right now.”
“They’re trying to prevent votes on these reforms because they know the reforms would win,” Goitein said. In 2024, the House voted 212-212 on a reauthorization carrying an amendment requiring a judicial warrant to close the backdoor search loophole.
“So there is really good reason for them to think this [would] pass,” Goitein added.
The issue isn’t evenly divided by party, unlike many others in Congress. On the late-night extension votes on the floor this month, four Democrats voted yes and 20 Republicans voted no.
Maryland’s eight representatives also voted no, including Rep. Andy Harris, the sole Republican among them.
Rep. Glenn Ivey, D-Md., said he wouldn’t support a reauthorization without a warrant amendment.
“I really didn’t get the sense for why – other than Trump told them not to do it or something – why this would be something they would so strongly oppose and resort to those kinds of tactics,” he told CNS. “But I think it hurt their cause ultimately.”
The divide marks a sharp reversal from 2024, when Trump posted on Truth Social, referring to past FBI investigations of his associates, “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”
At the time, Jordan and many other Republicans voted against the reauthorization, while many Democrats, like Raskin, voted for it.
“When your party’s in, you kind of see no wrong,” Raskin said. “That’s why we need the law.”
Sen. John Thune, R-S.D., filed cloture for a three-year extension last Thursday, but the provision is set to expire on April 30.
Until then, the question of how to renew Section 702 – and how to safeguard Americans’ privacy – remains unsolved.