The prolonged debate over the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA 702) ended in April with an extension of warrantless surveillance authority, but without substantial reforms to safeguard civil liberties. The new law, known as the Reforming Intelligence and Securing America Act, H.R. 7888, or RISAA, was touted by supporters as containing significant reforms. However, critics argue that it largely maintains a problematic status quo and even expands surveillance in concerning ways.
The focus of the FISA 702 debate was primarily on U.S. person queries. While FISA 702 surveillance is supposed to be directed at foreigners abroad, it often pulls in Americans’ communications with these foreign targets. Intelligence agencies then intentionally search for U.S. persons' communications within FISA 702 data, or “query” it, without court approval.
An amendment requiring a warrant for U.S. person queries was considered in the House of Representatives but failed to pass due to a tie vote of 212-212. In the Senate, where FISA 702 was set to lapse entirely unless reauthorized, an amendment imposing the warrant rule also failed by a margin of 42-50 votes.
Another key privacy issue during the reauthorization debate was closing the data broker loophole. This practice allows government entities to buy sensitive personal data that should require a warrant or court approval to obtain. The Fourth Amendment Is Not For Sale Act would have closed this loophole but unfortunately did not pass in the Senate.
While key reform amendments narrowly failed, Congress approved an amendment to expand surveillance by broadening the scope of entities subject to FISA 702 directives. As highlighted by CDT and FISA Court amicus Marc Zwillinger, this measure expands the definition of “Electronic Communication Service Provider” in such a way that includes many entities such as business landlords.
Despite these setbacks for civil rights and civil liberties advocates, the new law sunsets in April 2026, providing another opportunity for reform. In addition, the problematic expansion in surveillance is set to be re-examined within the next month.
