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A court filing shows the FBI has nearly 40,000 records that may reveal more about Section 702 noncompliance, but the documents are not expected to begin coming out until after Congress is likely to decide whether to extend the surveillance authority.
By yourNEWS Media Newsroom
Congress is again debating whether to extend Foreign Intelligence Surveillance Act Section 702 as privacy advocates warn that the public may not see key FBI records about improper searches of Americans’ communications until after lawmakers act.
Section 702 is designed to help U.S. intelligence agencies collect information on foreign nationals overseas. But because Americans often communicate with foreign targets by text, phone and email, their messages can be swept into the same databases. The FBI can then search those classified holdings for information about Americans without first obtaining a warrant from a judge.
That practice, often called a “backdoor” search, has become a central issue in the reauthorization fight. Civil liberties advocates in Congress want a warrant requirement for searches involving Americans, except in emergency situations.
Supporters of the surveillance authority frequently cite the intelligence community’s claim that Section 702 contributes to 50% to 70% of items in the President’s Daily Brief. That claim has been referenced by members of Congress, media outlets, NPR and an intelligence community fact sheet. Critics say that argument does not explain how much of the intelligence requires warrantless searches involving Americans.
“What the ‘intel bros’ constantly do is conflate the use of Section 702 to surveil foreigners with the use of Section 702 to surveil Americans,” Gene Schaerr, an attorney for Carter Page, told the Daily Caller News Foundation. Page was a Trump campaign aide targeted under a separate FISA provision that later became part of the Russiagate controversy. “They’re constantly playing this game of flimflam. Nobody disagrees that 702 is really important. The question is why do you need to surveil Americans? They never even try to make the case.”
According to a Daily Caller News Foundation report, Americans have limited visibility into how often FISA rules are violated. Reporting requirements exist to track noncompliance, but the intelligence community evaluates its own conduct and keeps details about violations from the public.
The FBI did not respond to requests for comment.
A recent court filing disclosed that the FBI has 39,650 records that could provide more information about the frequency and nature of FISA abuses. The Department of Justice, however, is not expected to release even a small initial batch until August, after Congress may have already extended the authority.
An ODNI and DOJ graphic included in the original report points to the agencies’ compliance reporting.
The timing of reauthorization remains uncertain after Congress missed a June 12 deadline. The dispute over Section 702 is also tied to a broader clash between President Donald Trump and Congress involving the SAVE America Act, a voter ID measure.
Schaerr, who also serves as general counsel for the Project for Privacy and Surveillance Accountability, said the authority can reach any American’s communications.
“Section 702 can be used against any American, including the president after he leaves office. It could be used to target him now!” Schaerr said. “All it would take is some rogue actor somewhere in the FBI.”
Trump’s own position has been difficult to define. The White House has urged congressional Republicans to renew Section 702 without additional changes, angering civil libertarians who want stronger Fourth Amendment protections. In April, Trump called for an extension without further reforms while acknowledging that the FBI had used the law against him.
“I am willing to risk the giving up of my Rights and Privileges as a Citizen for our Great Military and Country! Our Military Patriots desperately need FISA 702, and it is one of the reasons we have had such tremendous SUCCESS on the battlefield,” Trump wrote at the time.
Last week, Trump disrupted Senate Majority Leader John Thune’s plan to renew Section 702 with Democratic support by tying the issue to the SAVE Act, which lacks Democratic support and has limited Republican backing. The Daily Caller reported that some Republican senators oppose the bill because of resentment toward Trump.
Trump met with Senate Republicans Wednesday in a tense lunch focused on his election integrity legislation. Hours later, Thune sent the Senate into a two-week recess. A Daily Caller post on X highlighted the dispute.
Earlier this month, 19 House Republicans voted against renewing Section 702 without a warrant requirement. Rep. Thomas Massie, R-Ky., has criticized Trump for embracing the authority after previously warning against warrantless surveillance.
“I’ll continue to support the valid Constitutional position that Trump, [House Judiciary Chair Jim] Jordan, and [Vice President JD] Vance have all expressed strongly in the past: No FISA reauthorization without a warrant requirement for US citizens!” Massie said in March in a post on X.
Asked by reporters on Capitol Hill Monday whether Trump would veto a Section 702 renewal without the SAVE Act, Thune did not give a definite answer.
“I certainly would hope if we can get FISA off the floor, he would sign it,” Thune said.
The FBI will not begin releasing documents tied to FISA abuse until Aug. 15, according to a June 5 filing in a Freedom of Information Act lawsuit filed by the Cato Institute in October 2025. The first release is expected to include only 128 pages.
A legally required report by the Office of the Director of National Intelligence and DOJ says the FBI has a 99% compliance rate, though the fine print notes that DOJ audited only a snapshot of searches.
The Foreign Intelligence Surveillance Court, the secret court overseeing FISA, found in an April 2022 ruling that the FBI misused the Section 702 database 278,000 times. Congress passed reforms in 2024, but those changes would have prevented only two of the improper “backdoor” searches identified in 2022, according to the Brennan Center for Justice.
Additional questions surfaced this year about whether the FBI searches Americans’ communications more often than it reports. Members of Congress said they reviewed a March legal opinion from the FISA court describing routine violations of Americans’ constitutional rights.
That ruling remains classified. Press reports indicate that the court sharply criticized a database filter that allegedly undercounts searches involving Americans’ information. DOJ appealed the ruling.
A bipartisan group of senators has called for the opinion to be declassified immediately. Keith Chu, a spokesman for Sen. Ron Wyden, told the Daily Caller News Foundation that the administration has not provided a timeline for release.
FISA does not require declassification of the ruling until September, which could come after Section 702 is renewed.
Some supporters of Section 702 acknowledge that some searches could not meet a probable cause standard but argue the tool is needed early in investigations, when agents have limited information. They say the low legal threshold is part of what makes the authority useful.
FBI guidance says searches of FISA data must meet three criteria: an authorized purpose tied to evidence of a crime, limits on retrieving unnecessary intelligence and a specific factual basis for the search.
The DOJ National Security Division provides FBI noncompliance reports to Congress and the secret FISA court, but those reports are not made public.
In Cato’s transparency lawsuit, the group seeks documents tied to noncompliance reports from June 2023 through August 2024. Cato also sought more recent documents, but the FBI has refused to produce them.
The delayed release of 39,650 records may show how much is still unknown about the program’s compliance problems, Cato argues. The organization says a similar delay occurred before the April 2024 FISA deadline, when DOJ released records about noncompliance reports after Congress approved a two-year extension.
“By keeping the program audits out of public view, Justice was shielding the program from criticism that could tank the surveillance program,” Cato Institute Senior Fellow Patrick Eddington wrote.
Supporters of Section 702 argue the program is especially valuable in areas where the U.S. has limited human intelligence sources. One example cited by proponents is China, where the government compromised America’s spy network and executed CIA assets from 2010 to 2012, damaging intelligence operations for years.
Meanwhile, the secret court overseeing Section 702 has already approved the program for another year, even as the Trump administration challenges changes the court demanded to its filtering tools.
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