How Section 702’s Lapse Is an Opportunity for Congress

Congress recently allowed Section 702 of the Foreign Intelligence Surveillance Act (FISA) to lapse, now giving them until March 2027 before surveillance authority ends to extend, reform, or completely eliminate the program. If 702 is to be continued, Congress needs to use this eight-month window to revise 702 to meet constitutional standards that protect Americans’ privacy, a standard that each reform attempt thus far has consistently fallen short of. 

FISA’s Section 702 allows for intelligence agencies to target foreigners abroad and collect data, simultaneously gathering the private communications of ordinary Americans—via texts, emails, and phone calls—from people who are unaware their contacts are under surveillance. 

Supporters argue that 702 is an indispensable intelligence tool, citing claims that over 60% of the President’s daily intelligence briefings originate from 702 data. However, such claims obscure the program’s sweeping collateral scope. By design, the procedures create pathways to gather communications from individuals who may not be suspected of any wrongdoing. 

The legal controversy surrounding 702 comes from its thin constitutional alignment. Historically, courts have recognized “exigent circumstances” exceptions to the Fourth Amendment’s warrant requirement, allowing for warrantless searches in times of immediate emergencies. The Foreign Intelligence Court of Review has also recognized a limited version of this exception, applying a reasonableness standard to targets outside the United States. However, political supporters have attempted to rhetorically stretch this doctrine to justify 702 by hand-waving national security. 

The Fourth Amendment, in fact, has no national security exception. This was stressed unanimously by the Supreme Court in United States v. U.S. District Court (1972), commonly known as the “Keith Case.” Therefore, it would be unreasonable to grant emergency power to a regular government function. Exigent circumstances require an immediate threat. Rather than operating within constitutional limits, the 702 framework opens the door to what are known as “backdoor searches,” in which agencies can search the 702 databases specifically for Americans’ communications without warrants, all because that American happened to have communicated with a foreign target. 

Before 702’s lapse, reform proposals have failed to meet a standard that ensures its constitutionality and protects Americans’ privacy. In 2024, the Reforming Intelligence and Securing America Act (RISAA) solidified the status quo and even expanded 702’s reach. More recently, Speaker Johnson’s Foreign Intelligence Accountability Act protected warrantless backdoor searches while also making it easier for prosecutors to utilize information gathered through 702 against Americans in court. 

Apart from the failed attempts at reform that perpetuate the unconstitutional nature of 702, there is also an extensive record of abuse. Journalists, members of Congress, and political activists have had information accessed via 702 databases without warrants. Although FISA’s primary aim is to target foreign threats, intelligence agencies have improperly been able to obtain Americans’ personal information. This abuse record exists because the reforms previously lacked enforcement methods. 

What is most striking is that Congress is debating in black and white: either arguing for a full warrant requirement or nothing at all. While the intelligence community asserts that a warrant requirement is too slow in genuine emergencies, others are concerned that Americans become vulnerable to this Fourth Amendment loophole through backdoor searches. Congressional reform can pursue the middle ground and break away from the traditional path of engaging in a binary debate.

Routine backdoor searches are at the forefront of this debate, and they should require a warrant. However, to recognize the urgent nature of intelligence work, genuine emergencies can be given expedited processing. The FISA Court was designed to move efficiently if needed. Prior reform attempts failed precisely because they relied on the executive branch’s self-accountability. However, a tiered system of expedited judicial review can address the discrepancies in external accountability and enforcement mechanisms. With a strict standard that 702 should be held to via the tiered system, Congress does not have to engage in this binary debate. 

As March 2027 approaches, the recent lapse has afforded Congress time to reform. Now the question is whether they can use that time to actually build something that operates constitutionally, or will they revert to the path of least resistance?