Beyond Pulte, Congress cannot allow an extension for warrantless wiretaps

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Section 702 of the Foreign Intelligence Surveillance Act, a potent foreign surveillance authority that has been widely misused to spy on Americans, is scheduled to expire this week if Congress doesn’t renew it.

Last Friday, the Senate failed to advance a bill to reauthorize the law. Media reports suggest that Democrats blocked the bill in response to President Trump’s announcement that Bill Pulte will serve as acting director of National Intelligence when Tulsi Gabbard steps down at the end of June.

That narrative, however, tells only part of the story. Some Democrats did oppose the bill to pressure Trump on Pulte — and rightly so, given Pulte’s role in triggering dubious mortgage fraud charges against Trump’s political enemies.

But Section 702 was already in jeopardy before the Pulte announcement. That’s because Republican leaders have refused to allow votes on basic reforms that are widely supported on both sides of the aisle. Pulte’s slated appointment is just another reminder of why these reforms are so critical, and why Section 702 is on life support without them.

Section 702 authorizes warrantless surveillance of foreigners located outside the U.S. But it inevitably sweeps in large volumes of Americans’ communications, because Americans communicate with foreigners. And because foreign targets need not be suspected of any wrongdoing, the surveillance can capture wholly innocent conversations between Americans and their friends, relatives and colleagues overseas.

Under rules approved by a special surveillance court, the government is barred from searching Section 702-acquired data for Americans’ communications — a practice known as “backdoor searches” — unless doing so is likely to reveal foreign intelligence.

There have been widespread violations of these rules, however. In recent years, FBI agents have conducted searches for the private communications of members of Congress, journalists, more than 19,000 congressional campaign donors and tens of thousands of protesters across the ideological spectrum.

For over a decade, there has been broad bipartisan support for a simple reform: requiring the government to get a warrant before accessing Americans’ communications collected under Section 702. This reform has passed the House twice. When polled, 76 percent of Americans support it.

But this year, Republican leaders have refused to allow any votes on reforms. Instead, Trump allies in Congress, joined by surveillance hawk and longtime warrant opponent Sen. Mark Warner (D-Va.), drafted reauthorization legislation behind closed doors. They invited the administration into this process while shutting out members who support reform. And they kept the text under wraps until shortly before members had to vote on it.

The resulting bills have been packed with provisions designed to look like reform — but none establishes any limits on backdoor searches, let alone a warrant requirement. Instead, the bills simply add more layers of internal oversight, such as recordkeeping, auditing and reporting. Similar measures have consistently failed to rein in violations in the past.

Relying on executive branch self-policing is particularly futile in an administration that has dismantled the key oversight mechanisms for Section 702. Trump and his appointees have gutted the Privacy and Civil Liberties Oversight Board, fired or reportedly silenced the relevant Inspectors General and eradicated the FBI office created in 2020 to ensure compliance with Section 702 rules.

The potential for abuse is not limited to Pulte — or anyone else Trump might appoint to that office. After all, acting Attorney General Todd Blanche and FBI Director Kash Patel already have access to Section 702-acquired information. They, like Pulte, have proven that they are willing to misuse their positions to go after Trump’s perceived opponents.

At bottom, no government official should be entrusted with warrantless access to Americans’ private communications — a point underscored by Section 702’s long history of abuse. Members on both sides of the aisle understand this.

That’s why House Speaker Mike Johnson (R-La.) failed twice to advance Section 702 renewal even before Trump announced Pulte’s appointment, and it’s why seven Republicans joined Democrats last Friday to block the Senate bill. Pulte or no Pulte, renewal of Section 702 will be an uphill battle unless Republican leaders allow votes on genuine reform.

Congress has plenty of time to hold those votes. Section 702 operates under year-long certifications approved by the special surveillance court. The law is clear that these certifications are grandfathered if the statute expires. The court last approved Section 702 certifications in March, which means surveillance is locked in until March 2027.

Some claim that companies might nonetheless refuse to turn over targets’ communications, but that’s a red herring. If a company withholds cooperation, the surveillance court can compel compliance, and the company would face fines of $250,000 per day or more.

Of course, Pulte will continue to be part of the Section 702 conversation. There are multiple reasons to oppose his appointment, including his lack of professional qualifications. Democrats are amply justified in refusing to advance any Section 702 reauthorization unless Trump withdraws his pick.

But no matter who replaces Gabbard, there will be strong bipartisan opposition in Congress to renewing Section 702 without the opportunity to vote on a warrant requirement for backdoor searches. And unless Congress enacts this reform, abuses of the law are not only possible, they are also inevitable.

Elizabeth Goitein is senior director of the Liberty and National Security Program at the Brennan Center for Justice at NYU Law.

Explainer-What is FISA Section 702, the U.S. surveillance law set to expire June 12?

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Beyond Pulte, Congress cannot allow an extension for warrantless wiretaps

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Explainer-What is FISA Section 702, the U.S. surveillance law set to expire June 12?