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House Judiciary Hearing Presses for Warrant Requirement, Data‑broker and Court Reforms in Section 702 Reauthorization
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Summary
At a House Judiciary Committee hearing, witnesses and members across the aisle urged Congress to require a probable‑cause warrant before agencies can search Americans’ communications collected under FISA section 702, close a data‑broker loophole, narrow a broad provider definition and expand amicus participation in the FISA court.
The House Committee on the Judiciary convened a lengthy hearing on the Foreign Intelligence Surveillance Act’s section 702 as lawmakers prepare for reauthorization, with witnesses and many members urging statutory safeguards to prevent warrantless searches of Americans’ communications.
Chairman Jordan opened the hearing by citing inspector‑general findings and oversight concerns, saying that the FBI has allowed broad access to 702‑derived data and that Congress must act. He noted the scale of access and searches presented to the committee and argued that if an agent intends to search a database for an American’s name, phone number or email, “you should go to a separate and equal branch of government and get a warrant to do so.”
Why it matters: Section 702 authorizes collection of communications of designated foreign targets but can sweep in communications of U.S. persons who communicate with those targets. Committee members and witnesses said internal agency controls have proven insufficient and that legal changes are required to protect constitutional rights while preserving legitimate national security collection.
Key witnesses, including Brett Tolman of Right on Crime, Gene Sher of the Project for Privacy and Surveillance Accountability, James Chernowski of the Consumer Choice Center and Elizabeth Goiten of the Brennan Center, described abuses and proposed a concise set of reforms. Tolman said FISA ‘‘is in desperate need of reforms’’ and urged a statutory warrant requirement for U.S. person searches. Goiten told the committee that in 2023 the FBI conducted ‘‘more than 57,000’’ backdoor searches of U.S. person identifiers and stressed that recent reporting and audits remain incomplete because the FBI failed to count some query activity in 2024.
What witnesses and members proposed
- Require a probable‑cause warrant or a FISA Title I order before searching Americans’ communications that were incidentally collected under section 702, with narrowly drawn exigent‑circumstance exceptions. Witnesses argued this would place gatekeeping with an independent judicial officer rather than internal supervisors.
- Close the ‘‘data‑broker’’ loophole by requiring judicial process before agencies may search purchased datasets containing sensitive personal information.
- Narrow the statutory definition of ‘‘electronic communications service provider’’ (ECSP) so that routine small businesses or houses of worship are not conscripted into compelled operational assistance for surveillance.
- Strengthen the FISA court’s oversight by expanding appointment of amici and other third‑party advocates in politically sensitive proceedings.
Members pressed witnesses on numbers and compliance. Committee members repeatedly raised the inspector general and ODNI figures discussed in the hearing record: examples cited include millions of queries in earlier years, a smaller reported number in 2024 and the FBI’s recent classification of some automated sorts or filters as not qualifying as ‘‘queries,’’ which the witnesses said obscures the true extent of searching. Multiple witnesses said the changed counting method means the 9,000 figure reported as known and counted queries may understate actual activity.
On government use of outside commercial data and tools, witnesses warned that purchasing detailed geolocation, browsing and other personal datasets creates an alternate route for surveillance that can evade traditional Fourth Amendment protections. Goiten and other witnesses described how combining purchased data with agency holdings can create comprehensive profiles of Americans, and they urged statutory guardrails on the use of purchased data.
Members on both sides of the aisle pressed for stronger enforcement and deterrence to address past cases in which internal controls were bypassed or misused. Several members cited the Carter Page and related investigations as evidence that court review and stronger adversarial input in FISC proceedings are necessary.
What the committee will do next: With reauthorization approaching, members said they will press for statutory changes. The committee gave members five legislative days to submit additional questions for the record, and the chairman adjourned the hearing without any immediate vote on legislation.
Quotes that capture the hearing
- ‘‘FISA is in desperate need of reforms,’’ Brett Tolman said in his testimony.
- ‘‘If the government wants to access an American’s communications, they should be required to get a warrant,’’ Elizabeth Goiten told the committee, characterizing backdoor searches as a ‘‘bait and switch’’ that undermines the Fourth Amendment.
What remains unresolved
Committee members and witnesses agreed on many reform priorities but differed over legislative strategy and precise statutory text. Several witnesses warned that even with reforms, monitoring and enforcement mechanisms will be necessary to ensure compliance and transparency, including reconstruction of missing records where the FBI has not produced complete query logs.
The hearing record and committee exchanges will likely shape draft language to accompany the section 702 reauthorization this Congress. The committee took no legislative action at the hearing; it adjourned after inviting follow‑up material and written questions from members.
