The Trump administration is pushing Congress to extend Section 702 of the Foreign Intelligence Surveillance Act (“FISA 702”), a warrantless surveillance power that will shut down in March unless lawmakers act before then. In making its pitch, the administration claims that guardrails against abuse are working flawlessly, and FISA 702 is operating with practically no problems or mishaps. The reality is starkly different. The government has been repeatedly misusing FISA 702 and is now breaking the law to hide its misconduct from the public.
FISA 702 is highly controversial because of its long history of query abuse, whereby the Intelligence Community can pull up the private messages of Americans whose communications are swept up in a program meant to target foreigners. But while President Donald Trump and current FBI Director Kash Patel called for major FISA 702 reforms during the 2024 campaign, the administration now says FISA is no longer an issue. “For the first time in the FBI’s history, our queries, per the FISA Court itself, are over 99 percent compliant,” Patel boasted during a recent hearing. His written testimony reiterated these numbers and added “During my tenure, we have … implemented a continuous double audit” of all FISA 702 queries conducted by the FBI.
The FBI claims misconduct is down, oversight is up, and the FISA Court, which signs off on the government’s surveillance requests, is offering its resounding approval. The administration’s position is: why wouldn’t Congress sign off on a FISA 702 extension when everything is working perfectly?
It turns out, however, that there’s not a problem in sight because misuse of the program is being covered up. Earlier this year, media reports revealed that an undisclosed FISA Court ruling criticized the government for using filter tools to run queries on Americans without logging those activities as queries (while details are scarce, the New York Times article describes the use of filtering systems that allow personnel to pare down broader queries to focus on specific communicants, including Americans). This means the FBI, CIA, and National Security Agency were pulling up Americans’ private communications but doing so without following the rules and procedures for running queries. Therefore, the government could avoid subjecting these queries to any audit or oversight review, and not even include them in the annual count of how many queries occur.
The dangers of this are profound. According to Senator Ron Wyden (D-OR) and Rep. Thomas Massie (R-KY), the FISA Court opinion, which they have accessed, details “serious abuses.” Massie has warned that the ruling “raises serious concerns about FBI implementation of FISA 702.” Wyden has highlighted that the ruling outlines “major compliance problems” and emphasized that the court “found serious violations of Americans’ constitutional rights.” And just this week Senator Adam Schiff (D-CA) and Senator Wyden sent a letter to the Attorney General and Director of National Intelligence stating that the opinion “details serious abuses of Americans’ rights.”
How often have querying rules and oversight been circumvented? Did these un-logged queries focus on lawmakers, journalists, or protesters, as past query abuse has? What (if any) remedial measures were undertaken to address the problem? Unfortunately, we don’t know the answer to any of these questions, because the FISA Court ruling detailing what happened remains secret.
That secrecy is in itself a major compliance violation. After post-9/11 surveillance scandals came to light, Congress passed a law requiring disclosure of important FISA Court opinions, which was later updated to require that disclosure occur within six months (an amply generous timeframe for declassification review). But the Intelligence Community has let the statutory deadline pass, and taken no action to release the ruling, nor given any indication if it will do so.
This paints an alarming picture. The FISA Court caught the government improperly running queries for Americans under FISA 702 without following rules that might head off abuse or conducting oversight to catch any misconduct that occurred. Now the Trump administration is violating the law to keep the details of that ruling hidden. At the same time, it’s pushing hard for Congress to extend the authority, before details can be revealed or questions can be answered.
This conduct raises an array of questions, but they all come down to one straightforward concern: When it comes to warrantless FISA surveillance, what is the government hiding?
Without answers, Congress should be treating FISA 702 with the utmost skepticism and scrutiny. It certainly should not rush through an extension of the law before this opinion is released, or without thoughtful debate and votes on a set of meaningful reforms. Throughout American history, there are examples of how dangerous it can be to let surveillance abuse fester in darkness. Congress needs to shine a light on FISA 702 and root out any misconduct that is occurring.
