Congress faces a choice later this month over the FBI’s access to Americans’ email, text, and phone conversations. A surveillance program created nearly twenty years ago – Section 702 of the Foreign Intelligence Surveillance Act (FISA) – will sunset on April 20 if Congress does not reauthorize it. Section 702 allows U.S. intelligence agencies to collect the email, text, and phone communications of foreign nationals located outside the United States. As a byproduct, Americans’ communications are caught in the net as well. Subject to limitations that Congress introduced in 2024, the FBI can dip into that vast database to look for derogatory information on Americans – without a warrant and without probable cause of wrongdoing.
That “back door,” allowing access to Americans’ communications, is ripe for abuse especially in the context of the administration’s campaign to paint “antifa” as an international and domestic terrorist threat (see Section II below). Any expert of national security surveillance law following the government’s escalating actions on “antifa” can connect the dots to FISA electronic surveillance and other counterterrorism and intelligence authorities. Very recent reporting by the New York Times and Puck News points in that direction as well.
Because it is amorphous and untethered to the facts, the “antifa” label creates a framework for bringing peaceful civil society organizations and everyday Americans exercising their right to protest into the Section 702 surveillance net. Hence, the question of whether Congress should reauthorize Section 702 but with a requirement that the FBI obtain a warrant from a federal judge to look at Americans’ communications.
In 2024, the last time Congress faced the same choice in reauthorizing the program, a bipartisan proposal — to require intelligence agencies to get a warrant before accessing Americans’ communications — missed passing by a single vote in the House (212-212 split).
Public and private debates over whether to add a warrant requirement to Section 702 have raged over many years and can, at times, appear repetitive. This year is different. Congress’s decision whether to renew Section 702 comes at a moment when the Trump administration appears poised to expand the database with new collection priorities and to seek Americans’ communications for reasons that are illegitimate and could jeopardize the program as a whole.
How could it imperil Section 702, including the program’s beneficial uses? Americans simply may not tolerate entrusting the government with such powers if those powers are easily and shockingly abused. Preventing government misusage may be critical to sustaining public support for the program writ large and over the long term.
Failure to maintain Section 702 would be a tragic outcome. Specifically, the loss of the core surveillance program – the interception of communications of foreign actors abroad who pose real threats – would amount to “the worst intelligence failures of our time,” as the President’s Intelligence Advisory Board (PIAB) explained in 2023.
In this article, I will explain risks that the Trump administration will more systematically turn the FISA tool inward to go after Americans. It cannot go unnoticed that these concerns arise when internal executive branch structures for checking government abuse have been eroded, if not decimated. And federal courts have found the administration systematically violating Americans’ First and Fourth Amendment rights in related domains.
The upshot of these converging factors is, with “antifa” designations in hand, the FBI having the ability to abuse exceptional national security powers to access peaceful and law-abiding Americans’ email, text, and phone conversations without a warrant.
A solution that fits the problem is to require the Justice Department to obtain a judge’s approval for the FBI to read Americans’ communications. That may be good policy regardless of presidential administrations and whatever one thinks the Fourth Amendment demands. National security experts have long worried about the tradeoffs in having such a procedure in place. However, the conditions for obtaining a warrant can be modified in several ways, as outlined below, to meet those concerns.
Some good news is that after Congress, in 2024, enacted restrictions and better procedures for the FBI to access the 702 database for Americans’ communications, those reforms appear to be working (see April 2026 PCLOB staff report and Department of Justice Inspector General report). But those reforms are incomplete and do not address the risks discussed here.
I. Abuses of Domestic Intelligence Surveillance and the Value of a Judicial Warrant
At different moments in American history, the highest levels of the U.S. government have given into the temptation to use surveillance tools to spy on fellow citizens. Uncovering decades of abuses under Republican and Democratic administrations, the Church Committee reported: “The targets of intelligence activity have included political adherents of the right and the left, ranging from activists to casual supporters.”
Indeed, one of the revelations showed FBI Director J. Edgar Hoover’s use of surveillance to spy on perceived political enemies as well as on other individuals to make sure of their loyalties. An example of the scope of abuses included Hoover’s keeping records on several Supreme Court Justices.
In short, all Americans, regardless of their politics, have an intrinsic interest in guarding against the abuse of domestic surveillance powers.
In a landmark Supreme Court opinion (the Keith Case) in 1972, the Justices unanimously struck down the government’s warrantless electronic surveillance of Americans for domestic national security purposes. Justice Lewis F. Powell Jr. wrote about the risks of electronic surveillance when connected to the “inherent vagueness of the domestic security concept.” He outlined the need for a warrant to manage such risks. Writing for the Court in Keith, he said:
Security surveillances are especially sensitive because of the inherent vagueness of the domestic security concept, the necessarily broad and continuing nature of intelligence gathering, and the temptation to utilize such surveillances to oversee political dissent. We recognize, as we have before, the constitutional basis of the President’s domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case, we hold that this requires an appropriate prior warrant procedure.
Courts have been grappling with whether the Fourth Amendment also requires a warrant before the government can query the Section 702 database for Americans’ communications. A federal district court, implementing guidance from a unanimous decision of the Second Circuit Court of Appeals, recently held that the Fourth Amendment’s warrant requirement applies. FISA court decisions have rejected such a warrant requirement. However, those decisions also recognize that the Fourth Amendment applies to the Section 702 program and have held that querying of Americans’ communications in compliance with existing statutory and regulatory standards satisfied the Fourth Amendment. In a 2025 decision, Judge Anthony Trenga, serving as a FISC judge, explained:
[T]he government contends that queries do not qualify as “searches” under the Fourth Amendment because U.S. persons do not have an objectively reasonable expectation of privacy in communications incidentally acquired pursuant to Section 702. The government’s contentions assume too much. Section 702 acquisitions are only lawful if the procedures adequately protect the privacy interests of U.S. persons whose communications are acquired. Indeed, if the U.S. persons whose communications are incidentally acquired did not maintain Fourth Amendment-protected interests in those communications, no foreign intelligence exception to the warrant requirement would be necessary.
The two sides are not that far apart on whether the Fourth Amendment applies. Even if they were, as the Congressional Research Service recently explained, “The Fourth Amendment operates as a floor for protecting individual rights. Congress cannot override Fourth Amendment requirements, but it can legislate more robust protections.”
II. The Trump Administration’s New Foreign Intelligence Priority: “Antifa”
The timeline below shows the escalating series of administrative actions trying to create the figment of antifa as a foreign and domestic intelligence threat:
Jan. 5, 2021: The outgoing Trump administration issues an immigration-related Executive Order on “Memorandum on Inadmissibility of Persons Affiliated With Antifa Based on Organized Criminal Activity”
Sept. 22, 2025: The White House issues Executive Order on “Designating Antifa as a Domestic Terrorist Organization”
Sept. 25, 2025: The White House issues National Security Presidential Memorandum 7 (NSPM-7) on “Countering Domestic Terrorism and Organized Political Violence” (with an expansive scope and First Amendment implications)
NSPM-7 states: “Common threads animating this violent conduct include anti-Americanism, anti-capitalism, and anti-Christianity; support for the overthrow of the United States Government; extremism on migration, race, and gender; and hostility towards those who hold traditional American views on family, religion, and morality.”
Key action: Nov. 13-20, 2025: The State Department designates four “antifa groups” as foreign terrorist organizations (FTOs)
Dec. 4, 2026: Attorney General Bondi issues a Memorandum on “Implementing National Security Presidential Memorandum-7: Countering Domestic Terrorism and Organized Political Violence”
The memo states: “These domestic terrorists use violence or the threat of violence to advance political and social agendas, including opposition to law and immigration enforcement; extreme views in favor of mass migration and open borders; adherence to radical gender ideology, anti-Americanism, anti-capitalism, or anti-Christianity,”
March 2026: The FBI and IRS reportedly form a “mission control command center” to investigate nonprofit organizations
March 2026: The administration’s FY 2027 FBI Budget Request to Congress refers to establishment of a NSPM-7 Joint Mission Center (JMC) intended to “investigate, prosecute, and disrupt entities and individuals engaged in acts of political violence and intimidation designed to suppress lawful political activity or obstruct the rule of law” and to proactively identify networks and prosecute domestic terrorist and related criminal actors” (emphasis added).
Key action: By April 2026: “Antifa” reportedly added to the National Intelligence Priorities Framework
May 2026: The State Department is reportedly planning a workshop in May for foreign law-enforcement officials in The Hague
July 2026: The State Department is reportedly planning an “antifa” summit on the topic in Washington in July for foreign government officials.
Key to unlocking foreign intelligence surveillance authorities is the global-to-domestic nexus. Among the most important mechanisms is the FTO designations of “antifa groups.” As Thomas Brzozowski, the Justice Department’s former Counsel for Domestic Terrorism in the Counterterrorism Section, warned in October 2025:
“An FTO designation would also seamlessly integrate Antifa into America’s most sophisticated surveillance infrastructure. Under the Foreign Intelligence Surveillance Act (FISA), the government may conduct electronic surveillance of ‘agents of foreign powers,’ including ‘groups engaged in international terrorism.’”
Among other consequences, FBI agents would be able to claim that queries of Section 702 data for the communications of Americans suspected of involvement with “antifa” are permissible because such queries are designed to return “foreign intelligence” (a requirement under current law).
Another important mechanism for unlocking Section 702 surveillance powers is listing “antifa” in the National Intelligence Priorities Framework (NIPF). The U.S. intelligence community’s Booklet on Section 702 states:
HOW DOES THE IC DETERMINE WHOM TO TARGET?
The National Intelligence Priorities Framework guides the IC’s efforts to collect foreign intelligence insights most relevant to the needs of the President and other senior policymakers.
Thus, the recent inclusion of “antifa” in the NIPF is a potential game changer for the government’s use of FISA.
What about the nexus to violence?
First, in the administration’s own policy framework, violence is not an essential element. NSPM-7, for example, conspicuously targets individuals and organizations on the basis of ideology and not only lists crimes of violence but also lists conspiracy against rights under 18 U.S.C. 241. The Attorney General’s implementing memorandum of Dec. 4, 2025 also targets ideology, and lists non-violent offenses such as conspiracy against rights, major fraud, mail and wire fraud. It also creates a potential fishing expedition for tax offenses: “In addition, federal law enforcement and federal prosecutors should consider any applicable tax crimes in cases in which extremist groups are suspected of defrauding the Internal Revenue Service.”
Second, the administration has asserted a baseless definition of “force” in related contexts. In immigration enforcement – which is a centerpiece for NSPM-7 and its notion of anti-fascist resistance – federal courts have repeatedly rejected the Justice Department’s bogus criminal charges of forcible interference with federal agents. While judges have generally been doing their job in checking unsustainable government claims of violence in those domains, in the surveillance context – where First and Fourth Amendment rights are also at stake – the federal courts have no equivalent role to play.
Is there any basis for designating “antifa” as a foreign intelligence threat?
Tom Joscelyn expertly demonstrated the bogus nature of the State Department’s November 2025 designations. The New York Times’ recent reporting shows that European governments, including in the very countries that the State Department has designated such groups, find the U.S. government’s claims about “antifa” baseless and baffling.
Does it stop with antifa?
If history is any guide (think: the Church Committee revelations), “antifa” will not be the end of the matter for this administration’s use of national security surveillance powers. The Times reports that Sebastian Gorka, the senior counterterrorism director on the National Security Council, is leading the initiative to deploy global counterterrorism machinery against “antifa.” What may come next for him? According to the Times:
“For months, Mr. Gorka has led a regular counterterrorism meeting with dozens of officials from U.S. security agencies. In those meetings, he has pushed for more attention on antifa, as well as other groups, like transgender activists and undocumented migrants.”
Another area of concern may be the use of Section 702 for Americans’ communications concerning illicit drugs. In 2024, Congress added counter narcotics as a new category of “foreign intelligence information” for purposes of Section 702 surveillance, but without any warrant requirement for judicial oversight.
III. The Solution: A Modified Warrant Requirement
As mentioned at the start, the House narrowly failed to add a warrant requirement the last time Congress reauthorized Section 702. There are several modifications to the warrant requirement that would reduce the burden on the administration while maintaining an institutional check in line with the Supreme Court’s decision in Keith – thus potentially striking an appropriate balance between important privacy concerns and the collection of evidence about real national security threats.
Indeed, in 2023, senior national security officials told Congress that “imposing a warrant requirement for all such queries” of U.S. persons’ (USP) data would “imperil U.S. national security.” The options below do not impose such a requirement for all such queries; and a lot may turn on whether the court review can, at least in emergencies, be retrospective.
Potential modifications (several of which are already in proposed bipartisan legislation) include:
Option 1. Allow the FBI to query the database for USP info, and seek a warrant from the FISC only if the query results in a “hit” telling the user there is responsive information (see PCLOB Recommendation 3);
Option 2. Allow the FBI to query and obtain USP metadata information without a warrant;
Option 3: Allow the FBI to query the database without a warrant to identify targets of cyber attacks;
Option 4: Allow the FBI to query the database without a warrant if the subject consents (e.g., victims of foreign plots);
Option 5. Allow the FISA court to approve a warrant if there’s a reasonable likelihood (lower than probable cause) the result will return foreign intelligence information (see PCLOB Recommendation 3);
Option 6. Allow the FBI to query and obtain USP communications in an emergency and obtain FISA court approval soon afterwards;
Some experts would note that the emergency exception (option 6) may eat the rule. In other words, in general and on average, FBI agents may consider querying the database an urgent national security measure, and then seek approval only after the fact. Even if that were the case, it would still ensure a judicial check on such actions. Indeed, one might even draft legislation to allow the FBI to retroactively obtain court approval in batches of queries on a weekly basis, if also assured the FISC would use that option to put a stop to future infractions as well. That option could still inject an institutional check and monitoring for potential systematic or individual abuses of the Section 702 database.
Other congressional action could also potentially help guard against abuse such as immediate notification requirements to Congress and clear restrictions on use of Section 702 against organizations and individuals involved in First Amendment activities.
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Debates over whether to require the FBI to obtain a warrant to access Americans’ communications in the Section 702 database often involve a false dichotomy – curtailing the usefulness of the 702 program for national security purposes versus protecting privacy and First Amendment interests. That’s not a proper way of understanding the choice at hand.
Section 702 is a vital national security tool, and providing checks against its abuse – a modified warrant requirement – may be the best way to sustain public trust in the program across administrations.
