Senate Republicans are falling over each other trying to bring back the government’s most powerful warrantless surveillance tool.
A handful of lawmakers are saying not so fast.
And Rand Paul just put the entire Senate GOP on notice over one jaw-dropping constitutional threat hiding inside Section 702 of FISA.
Section 702 Goes Dark for the First Time Since 2008
Section 702 of the Foreign Intelligence Surveillance Act expired recently, and for the first time since Congress passed the law in 2008, the authority lapsed without a reauthorization in place.
Section 702 allows the government to collect and search American citizens’ data without a warrant if they were in contact with targeted noncitizens located outside the United States. That last part is the part the intelligence community likes to emphasize. What they prefer not to talk about is what happens after the collection starts.
In collecting the communications of foreign nationals targeted by the intelligence community, Americans’ information — including calls, texts, and emails — can also be swept up in the dragnet. And federal law enforcement regularly queries the FISA database for Americans’ information and reviews their content. Those reviews are subject to certain procedural and executive branch oversight measures but do not require intelligence agencies and agents to demonstrate probable cause of wrongdoing to a court.
That’s how the deep state can target Trump supporters to ban them from banking or target them for lawfare like how the Biden FBI persecuted parents who protested mask mandates and critical race theory at school board meetings.
That is not a minor footnote. That is the whole ballgame.
The Senate Leadership Wants It Back, Fast
Senators appeared frustrated over President Donald Trump’s call to delay U.S. Attorney for the Southern District of New York Jay Clayton’s confirmation hearing to be the next director of national intelligence, repeatedly stating that Trump added more guardrails to getting Section 702 of the Foreign Intelligence Surveillance Act passed.
At a Senate press gaggle, Senate Majority Leader John Thune called on Clayton to be swiftly confirmed so Section 702 could be reauthorized. “I hope the [Democrats] will waive that for this and allow us to get this done, because I think that also unlocks the 702 process,” Thune said.
Senator Bill Cassidy also told reporters that Section 702’s reauthorization was necessary. “We need to get FISA reauthorized as soon as possible, and so the president needs to do whatever he can and avoid putting obstacles in the way of getting that done,” Cassidy said. “It is for the good of the country. We need to get that done.” Cassidy, who recently lost his primary, was essentially scolding Trump for slowing down the very process that would hand the surveillance state another long-term lease on life.
And there was no shortage of Republicans eager to echo that message. Republican Pennsylvania Representative Brian Fitzpatrick called Section 702 “the single most important 9/11 commission recommendation” and warned that it going dark “was foolishness.”
Rand Paul Wasn’t Having Any of It
But not every Republican in Washington, DC lined up to cheer for the surveillance apparatus.
Republican Kentucky Senator Rand Paul, who also voted against the procedural vote, said Section 702 must be reformed to protect Americans’ Fourth Amendment rights. “Your 4th Amendment rights matter. Reform FISA,” Paul said.
Paul has been saying this for years. He is not alone, even if the leadership would prefer he were.
Nineteen House Republicans voted against its extension, including Tennessee Representative Tim Burchett and Kentucky Representative Thomas Massie. These congressmen also voted against it because they believed a warrant should be put in place.
Opponents of Section 702 have simply demanded that a warrant requirement be added in exchange for voting to pass it. That is not a radical ask. That is the Fourth Amendment.
The FBI’s Track Record Makes the Case for Them
The argument for reform does not rest on hypotheticals. The documented abuses under Section 702 read like a greatest-hits list of government overreach.
The Foreign Intelligence Surveillance Court characterized the FBI’s violations as “persistent and widespread” in a 2022 court document that recertified the 702 program. Documented abuses, detailed in congressionally mandated transparency reports from the Office of the Director of National Intelligence, include warrantless searches for a U.S. senator, journalists and political commentators, 6,800 Social Security numbers, 19,000 donors to a congressional campaign, and an FBI employee’s family member whom the employee’s mother suspected of having an extramarital affair.
Read that again slowly. Nineteen thousand donors to a congressional campaign. A senator. Journalists. And the FBI kept its authority anyway, each and every time Congress came up for renewal.
As unambitious as the previous round of reforms were, it emerged within months that the FBI was systematically violating them. In August 2024, Department of Justice overseers discovered that the FBI had been quietly using a querying tool that allowed users to access Americans’ communications without adhering to the procedures designed to prevent abuse, such as obtaining attorney or supervisory approval for backdoor searches, recording the reasons for conducting them, and subjecting them to internal audits. It took months for the DOJ to shut down that tool.
And now the same institution that ran that operation wants a clean reauthorization with no warrant requirement attached.
The House Couldn’t Get It Done Either
The House also failed to temporarily extend Section 702 until July 2.
The vote was 198-218, which is not even a simple majority. The bill needed the support of two-thirds of the chamber to pass because it was brought up under a fast-track process known as “suspension of the rules.”
Speaker Mike Johnson said the opposition to Section 702 jeopardized “the safety and the security of the American people.” “They are willing to jeopardize the safety and the security of the American people to make a cheap political point,” Johnson said.
Johnson’s frustration is understandable on one level. But the members who voted no — on both sides of the aisle — were not making a cheap political point. They were making a constitutional one.
Republicans who want to extend Section 702 have said letting it lapse is, as Senate Majority Leader John Thune put it, “going to shut the lights off on this program and put at risk the American people.” But the program is operating under a yearlong certification from the Foreign Intelligence Surveillance Court that does not expire until March 2027.
Some legal experts said that means the warrantless foreign surveillance program can continue without congressional approval. So the sky-is-falling rhetoric from Republican leadership may be doing more work than the facts actually support.
Jay Clayton and the Confirmation Scramble
President Trump announced a permanent nominee to serve as director of national intelligence — federal prosecutor Jay Clayton.
The nomination came after weeks of chaos over Trump’s earlier choice of Bill Pulte for the acting DNI role. Things fell apart when President Trump nominated Bill Pulte to serve as acting director of national intelligence. As director of the Federal Housing Finance Agency, Pulte is known for leveraging his post and large social media audience to attack the president’s perceived foes. Democrats — even those most closely aligned with the intelligence community — immediately decried the appointment and said they would not reauthorize Section 702 while Pulte was Trump’s pick, over concerns that Pulte would weaponize FISA information.
That concern is worth sitting with for a moment. Democrats who have spent years cheerleading for Section 702 suddenly discovered civil liberties concerns the moment a Trump loyalist was set to run the program. While many key Democrats said they supported Clayton’s nomination, that did not translate into their lifting their hold on proceeding to a FISA extension.
Both parties have a long history of loving surveillance tools when their side controls them and rediscovering the Bill of Rights the moment the other team takes over. That pattern is worth remembering the next time a senator gives a speech about national security and the common good.
What Happens Now
This is the first time the intelligence agencies’ authority to conduct warrantless surveillance of foreigners abroad has lapsed since the law was passed by Congress in 2008. Whether that actually disrupts ongoing intelligence operations in any meaningful way remains genuinely unclear.
Some lawmakers worry that the companies compelled to turn over communications may attempt to challenge the law in court, possibly leading to an indeterminately long window during which they stop providing intel. Advocates on all sides of the surveillance fight believe those challenges are ultimately likely to fail, but those closely linked to the intelligence community emphasize that even a small pause comes with risks ahead of major events like America’s 250th celebration and the World Cup.
What does not remain unclear is the principle at stake. The government has spent nearly two decades collecting the phone calls, text messages, and emails of ordinary Americans under a legal theory that it was really just targeting foreign nationals. The FISA Court itself called the violations “persistent and widespread.” The FBI ran an unauthorized querying tool for months before the DOJ shut it down. And the response from most of Congress has been to ask for a faster reauthorization vote.
Rand Paul, Tim Burchett, and the other members who voted no are not jeopardizing national security. They are doing what their oath of office requires — demanding that the government get a warrant before it reads your emails.
That used to be called the Fourth Amendment. It still is.
Sources: Daily Caller, NPR, NBC News, Brennan Center for Justice, Congress.gov