Congress Reopens Debate Over Warrantless Searches of Americans’ Data

As Section 702 of the Foreign Intelligence Surveillance Act expires, Congress has reignited the debate over whether U.S. intelligence agencies can access Americans' communications without a warrant.

Four witnesses spoke before the House Judiciary Committee on Thursday, Dec. 11, urging Congress to tighten privacy measures and limit warrantless government access to Americans' emails, texts, and phone calls.

U.S. intelligence services can intercept foreign targets' communications without warrants under Section 702. The same data can be searched by U.S. agencies, potentially revealing Americans' international communications.

New York University's Brennan Center for Justice, senior director of the Liberty and National Security Program, Elizabeth Goitein, told lawmakers that the legislation is the problem. “The fundamental problem with Section 702 is that the government is also using it as a rich source of warrantless access to Americans’ communications,” she told the committee.

Gene Schaerr, general counsel for the 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, joined Goitein.

According to the Office of the Director of National Intelligence's transparency reports, Section 702 databases were searched for Americans' information more than 13,000 times in 2024. Officials acknowledge that inadequate tracking may lead to an increase in this number.

Section 702 supporters say it helps detect foreign terrorists, unfriendly regimes, and cyber dangers. Citing compliance issues and misuse, critics argue the program has become a domestic monitoring tool without enough court oversight.

“I believe that FISA, and particularly Section 702, are very flawed programs in practice,” Czerniawski told Military.com. He claimed that intelligence agencies have used non-U.S. powers “to spy on U.S. persons,” mentioning demonstrators, political funders, and congressmen.

Witnesses also encouraged legislators to eliminate the “backdoor search loophole,” which authorizes warrantless searches of Section 702 communications. India Electronic Frontier Foundation federal affairs director McKinney said Congress must set more precise boundaries.

“While Section 702 was first sold as a tool to stop foreign terrorists, it has since become clear that the government uses the communications it collects as a domestic source,” McKinney added.

After the Sept. 11 attacks, enhanced monitoring authorities shaped national security and civil liberties debates. Comments were sought from the White House, the Justice Department, the Office of the Director of National Intelligence, and the FBI.

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