Congress is grappling with renewal of a surveillance law set to expire at the end of this month that critics say is a mystery on how much of a difference it has made for controversial government spying authorities — for better or worse.
The 2024 law reauthorized so-called Section 702 powers of the Foreign Intelligence Surveillance Act (FISA), which authorizes warrantless surveillance of electronic communications of foreign targets. Most controversially, the law allows U.S. officials to search (“query”) those communications databases using Americans’ personal information, as long as the American is in contact with someone overseas, which raises significant privacy concerns.
Backers of the 2024 law, known as the Reforming Intelligence and Securing America Act (RISAA), point to 56 changes it made to deal with criticisms of Section 702, following a period where abuses came to light, including hundreds of thousands of improper searches. At the same time, the law made changes that some feared could actually expand Section 702 powers.
The House voted to extend the law as-is for 10 days early Friday. The Senate then did the same. The Trump administration has sought a 180-day “clean” reauthorization.
As Congress weighs potential extensions of the 2024 law without making changes to it, “I don’t think we know” what good has come of it, said Elizabeth Goitein, senior director of the Brennan Center for Justice’s liberty and national security program. By the same token, it’s difficult to know whether some of the expansion fears have come to fruition, she said: “We don’t have reliable information on this.”
Added Jake Laperruque of the Center for Democracy and Technology: “There’s a lot of black boxes here.”
Examining Past Changes
Both Goitein and Laperruque are skeptical of any positive change from RISAA, though, and have long advocated for a warrant requirement for U.S. person searches. Intelligence agencies have resisted that addition, claiming that it would dramatically slow down time-sensitive national security investigations.
By contrast, Glenn Gerstell, former general counsel at the National Security Agency, said RISAA constituted “the most significant set of reforms to the statute since its adoption in 2008.” and that “those reforms have had a dramatic effect.”
One major point of dispute is to what degree the number of U.S. person searches dropped, particularly because of a conclusion in last year’s Justice Department inspector general report finding that an “advanced filtering tool generated queries that were not tracked by the FBI.”
As the report outlines, an FBI system has an “‘advanced filter function’ that allows users to select a specific FBI casefile number or ‘facility’ (e.g., a phone number or email address), using a drop-down menu or search bar, to review communications with targeted facilities.
“This functionality enables users to select from lists of ‘participants’ in communication with targeted facilities and review communications of those participants.In or around August 2024,” the report continues. The National Security Division of the Justice Department “became aware of the participants filter function in [the system] and was concerned that searches conducted through use of the participants filter constituted separate queries that must satisfy the query standard and comply with all query procedural requirements.”
By the intelligence community’s count, the number of U.S. person searches has otherwise mostly declined even going back to before the 2024 law’s passage: 119,383 in 2022, 57,094 in 2023, 5,518 in 2024 and 7,413 in 2025.
“It is quite clear that the searches that were run using this filter function met the statutory definition of queries, and yet the FBI for some significant period of time decided to not count them as queries,” Goitein said.
Laperruque, deputy director of CDT’s security and surveillance project, said an audit mandate in the 2024 law was potentially useful, but hasn’t proven to be in reality.
“At least it should mean that it should help try to detect abuse if it is happening,” he said. “The problem there, though, is you’re still relying on the FBI to properly log all of its quarries and hand them over for DOJ to be checked, which hasn’t happened. You’re trusting DOJ and the executive to engage in self-policing, and that’s something where folks rightfully have a lot of skepticism based on how DOJ has conducted itself recently.”
Gerstell, a senior adviser at the Center for Strategic and International Studies, points to numerous reviews — including a staff report from the Privacy and Civil Liberties Oversight Board (PCLOB) — that indicate a drop in U.S. person searches. It’s the biggest change of RISAA, he said.
“The most significant one is a very substantial drop in the number of queries of the database for U.S. person information, which has been a big focus for privacy advocates, and there’s been a dramatic drop, so much so that both the Inspector General for the Department of Justice and the staff of the PCLOB have said, ‘I wonder if we’re overdoing it.’ … Every single one of them presents those numbers, without caveat.”
On the advanced filter function count, Gerstell acknowledged the ambiguity, but referred to reports that said, as he summarized, “If they had been considered queries, it appears that most would have been compliant anyway… because they were a subset of something that was already compliant. But we don’t know if any of them were noncompliant, and we don’t have the data.”
On the other side of the RISAA debate, critics argued that its revised definition of “electronic communications service provider” could dramatically expand surveillance to include businesses like coffee shops or landlords. The reported, but formally undisclosed, real target of the change was data centers.
“That was a pretty big expansion with a lot of potential abuse,” Laperruque said. But “we don’t really know much about how it’s changed” anything, he said.
Virginia Sen. Mark Warner, the top Democrat on the Intelligence Committee, sought to advance clarifying language about that subject after RISAA’s passage, and the Biden administration said it would confine the provision’s use to the kind of undisclosed businesses that prompted the provision in the first place. Laperreque noted that the Trump administration has made no such promises, and Warner’s clarifying language never became law.
The Foreign Intelligence Surveillance Court (FISC) has issued its annual opinion re-certifying the Section 702 program for another year. However, the court reportedly took issue with the program’s f filtering systems, saying that when such a system is used to look for information on Americans it must be counted as a query, subjecting it to additional restrictions. The Trump administration plans to appeal the ruling.
Other critiques of the 2024 law include that many of its biggest changes weren’t changes at all, but instead codifications of changes that then-FBI Director Christopher Wray had implemented. Abuses continued after those changes, Goitein said.
Gerstell said enshrining those changes into law wasn’t a bad thing. “The statute expressly codified some but not all of Wray reforms — and some went beyond that in many ways,” he said. Those changes included requiring FBI deputy director approval of U.S. person queries that target elected officials, government appointees, political candidates or organizations, or media. Those were some of the more criticized prior targeting abuses.
The fight still ahead
Republicans remain divided over extending the law. Some who had reservations about a clean reauthorization have come on board, such as Senate Judiciary Chairman Chuck Grassley, R-Iowa, who had taken issue with limitations on congressional attendance of FISC proceedings but since has had that concern resolved.
Others may have been swayed by direct lobbying from the Trump administration, including a social media post from Trump himself this week, where he wrote, “I am willing to risk the giving up of my Rights and Privileges as a Citizen for our Great Military and Country!” Still others have had their position against a clean extension hardened by the FISC court opinion and additional concerns.
Other issues have become enmeshed in the reauthorization debate, such as calls to block government agencies from purchasing information from data brokers. But “this has nothing to do with this authority,” said George Barnes, former deputy director of the NSA.
But lawmakers of both parties have complained for months that the administration was silent for too long as the law’s expiration loomed.
Only recently did the Trump administration share new examples of the law’s successes, including that it had thwarted a 2024 terrorist attack on a Taylor Swift concert. Barnes said releasing such examples might offer a public case for the law, but has its downsides, too.
“I was always understanding but frustrated by the need to release examples just because they choreographed to the adversary what we could do,” said Barnes, now Red Cell’s cyber practice president.
Reauthorizing Section 702 is urgent, though, for cybersecurity purposes, he said.
“A lot of the impact that I saw the authority having over my time was in cybersecurity as well,” he said. “And so when you have foreign entities that are targeting the U.S., or U.S. interests overseas, that authority can be positioned to help eliminate those activities.”
The post The surveillance law Congress can’t quit — and can’t explain appeared first on CyberScoop.
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