Section 702 of the Foreign Intelligence Surveillance Act lets US intelligence agencies collect communications from foreigners abroad without a warrant, and routinely sweeps in Americans’ emails, messages, and calls in the process.

The authority for this program is set to expire Friday, June 12th, 2026, at midnight. As we wrote earlier this week, Congress has been kicking the ball down the road for months now—temporarily postponing the expiration of the mass surveillance authority Section 702 of FISA in hopes that some consensus on a longer reauthorization could be reached. 

EFF has said for decades, every time this program is up for renewal: Section 702 should require a warrant before the Federal Bureau of Investigation can look at digital communications collected from Americans. If not, we should let the whole thing expire. And this time, it has, at least for a little while. 

Ironically, we have Bill Pulte to thank for this (probably temporary) reprieve. Earlier this month, Trump on Tuesday named Pulte – currently director of the Federal Housing Finance Agency (FHFA) and chairman of Fannie Mae and Freddie Mac – to replace current DNI Tulsi Gabbard, who announced her resignation last month. As has been widely reported, Pulte lacks any intelligence, military, or congressional experience. Senate Democrats responded by refusing to move forward with their version of a bill to reauthorize Section 702. Similarly, the House refused to approve even a short-term renewal of the program. 

However, the potential for abuse of this program is not limited to one individual or one administration. And if Congress is this concerned about one particular individual having access to Americans’ most sensitive information, the responsible thing to do is to put more transparency, accountability, and oversight into the structure of this program. 

Members on both sides of the aisle understand this. As we have seen several times this year already, the appetite for reform is stronger than ever. We hope to continue to see strong bipartisan opposition in Congress to renewing Section 702 without a warrant requirement for backdoor searches. Until then, the authority for this program should remain expired. 

For months now, Congress has been kicking the ball down the road—temporarily postponing the expiration of the mass surveillance authority Section 702 of FISA in hopes that some consensus could be reached. Now, with the deadline looming, the stakes have never been higher. Nearly every time the statute has come up for renewal, the people demanding privacy and civil liberties have had to compromise, but with current negotiations seemingly at  an impasse, it’s time for surveillance maximalist lawmakers to come to the table. 

We say to the Intelligence Community crowd: Section 702 should require a warrant before the Federal Bureau of Investigation can look at digital communications collected from Americans. If not, we should let the whole thing expire.

This is a serious proposition. The intelligence community can keep a useful national security surveillance tool if and only if they make FBI agents get a warrant signed by a judge before they sift through and read out private communications. A warrant requirement is not the only demand EFF has been making for changing Section 702, but it is the most important reform and it should happen before there is any more reauthorization of the policy. 

For too long, the FBI has been able to piggyback on a major national security tool as an unconstitutional backdoor way of reading Americans’ communications. 702 collects communications going to, from, or between people in other countries—including when they are contacted by people in the United States. Mass surveillance is just that—mass. It’s lacking any of the individualized suspicion that our legal system is based on. 

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TELL congress: 702 Needs Reform

So, what’s been happening?

On one side are surveillance hawks and intelligence community-devotees who think the mass surveillance of Americans is an acceptable, even valuable, product of this authority. This bipartisan coalition of privacy deniers think that 702 should be extended without any change, and they seem to be willing to let the authority expire rather than compromise with the lawmakers and public that are demanding common-sense reforms. They’ve been given a number of chances to pass bills that would implement some key incremental reforms, but those opportunities have not moved the needle. 

On the other side of the debate is a bipartisan coalition of people who understand that this authority can no longer operate as is. Section 702 is rife with problems, loopholes, and compliance issues that need fixing. The National Security Agency collects full conversations being conducted by and with overseas targets—including conversations by and with Americans in the U.S.—and stores them in massive databases. The NSA then allows other agencies, specifically the FBI, to access untold amounts of that information. In turn, the FBI takes a “finders keepers” approach to this data: they reason that since it's already collected under one law, it’s OK for them to see it. If the FBI wanted to get that data on their own, it would require them to get a warrant signed by a judge certifying that there is probable cause. Instead, under current practice, the FBI can query and even read the U.S. side of that communication without a warrant. What’s more, victims of this surveillance won’t know and have very few ways of finding out that their communications have been surveilled.

Complicating this matter more is that the Trump administration has announced Bill Pulte as the new Director of National Intelligence, whose job it will be to oversee and direct U.S. intelligence agencies. This is particularly concerning because of Pulte’s history of using private information held by the government as a political weapon. In his FHFA role, he has accused several of the President’s political foes and targets—including New York State Attorney General Letitia James, U.S. Sen. Adam Schiff, D-Calif., and Federal Reserve governor Lisa Cook—of mortgage fraud based on private data held by his agency. Because of his looming appointment, many Democrats have vowed not to reauthorize Section 702 unless he is removed from the position. They shouldn’t stop there—they should use that leverage to demand a warrant requirement. The integrity of the people in charge of a program should not be the only thing that stands between Americans and violations of their civil liberties. 

What happens if 702 expires? 

As the New York Times reports, “The law, however, has a built-in safety net for a temporary lapse that allows the surveillance program to endure until annual certifications issued by the nation’s intelligence court expire, though such a scenario could invite legal challenges. The court recertified the program in March, meaning the N.S.A. could continue to operate the program through March 2027 even if the statute were to expire.” 

If Section 702 does stay expired past March 2027, the United States government will likely revert to using other programs and authorities to justify the surveillance of overseas national security targets, namely 12333, a shadowy executive order from the 1980s that gives the U.S. government nearly unlimited power to spy on people overseas.  Even if this does come to pass, standing our ground on warrant requirements and allowing Section 702 to expire  is important for several reasons. First, just because the government continues surveillance under a different authority does not mean it is legally justified in doing so—this was the lesson of the post 9/11 Presidential Surveillance Program, which was only retroactively immunized by Congress. Second, seeing how the government responds to the end of Section 702 might give us opportunities to push for transparency in other parts of information collection and better understand how the inner workings of the intelligence apparatus pivot and adapt as new legal authorities take precedence. 

Where do we go from here? 

Every few years, for almost two decades now, we’ve been fighting to reform Section 702 so that it will no longer enable the warrantless mass surveillance of Americans. A bipartisan coalition in Congress supports this goal, but the White House and Congressional leadership won’t listen. It’s past time we make at least one serious reform to a mass surveillance law that has been abused for decades. Tell your elected official: Put a warrant requirement in Section 702 or let it expire.

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TELL congress: 702 Needs Reform

President Trump’s highly politicized appointment of an entirely unqualified acting Director of National Intelligence (DNI) underscores why the government’s warrantless mass spying power must be reformed. 

Congress now faces a deadline of Friday, June 12 to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, an unconstitutional program rife with problems, loopholes, and compliance issues. Section 702 allows the National Security Agency to collect communications from targets overseas – including communications with Americans in the U.S. – and stores them in massive databases. The NSA then allows other agencies, including the Federal Bureau of Investigation, to access untold amounts of that information.  

Under current practice, the FBI can query and even read the U.S. side of that communication without a warrant. What’s more, victims won’t even know and have very few ways of finding out that their communications have been surveilled. EFF and other civil liberties advocates have been trying for years to know how data collected through Section 702 is used in domestic investigations and prosecutions.  

Our advocacy to reform Section 702 has been consistent across administrations, including when the federal Intelligence Community was run by people with experience in the relevant agencies. In fact, the 2004 law creating the position of DNI – which coordinates America’s 18 spy agencies – requires those who hold it to have “extensive national security expertise.” 

Enter Bill Pulte. 

Trump on Tuesday named Pulte – currently director of the Federal Housing Finance Agency (FHFA) and chairman of Fannie Mae and Freddie Mac – to replace current DNI Tulsi Gabbard, who announced her resignation last month. Pulte lacks any intelligence, military, or congressional experience.  

“William has deep experience managing the most sensitive matters in America, the safety and soundness of the Markets, and over 10 Trillion Dollars at Fannie Mae/Freddie Mac, a substantial increase from where it was just 12 months ago,” Trump wrote on his Truth Social platform.

Pulte isn't a qualified intelligence administrator. He does, however, seem to be unquestioningly loyal to President Trump and willing to use his position to attack and smear the President’s political foes.   

Because Trump named him acting DNI, Pulte isn’t subject to Senate confirmation. And under the Vacancies Act, Pulte could remain in the role for about seven months. 

This is particularly concerning because of Pulte’s history of using private information held by the government as a political weapon. In his FHFA role, he has accused several of the President’s political foes and targets – including New York State Attorney General Letitia James, U.S. Sen. Adam Schiff, D-Calif., and Federal Reserve governor Lisa Cook – of mortgage fraud based on private data held by his agency.  

All these targets and others have denied wrongdoing. A federal criminal complaint filed against James in Virginia imploded after a judge found prosecutor Lindsey Halligan had been unlawfully appointed, and prosecutors twice failed to convince a grand jury to indict James. Pulte’s accusations against Schiff, Cook, and others have not led to criminal charges. 

Pulte also used his FHFA pulpit to attack then-Federal Reserve Chair Jerome Powell and dismantle internal oversight. 

Pulte isn't a qualified intelligence administrator. He does, however, seem to be unquestioningly loyal to President Trump and willing to use his position to attack and smear the President’s political foes. As acting DNI, Pulte would have access to every scrap of classified information the Intelligence Community holds, and under Section 702, that includes massive amounts of information about Americans. 

Even lawmakers who are typically friendly to the intelligence community acknowledge that this is a disaster in the making. U.S. Sen. Mark Warner, D-Va., who is the Senate Intelligence Committee’s ranking Democrat, told NPR that Pulte has "no experience in the military, no experience in Congress, no experience in the intel community or law enforcement" and was chosen because he is "100% loyal to doing anything and everything President Trump demands." 

And Senate Majority Leader John Thune, R-S.D., told reporters “we don’t need a weaponized” national intelligence director. Asked about fears that Pulte might pursue Trump’s political opponents, Thune said: “We need professionals there.” 

Congress already has had trouble reauthorizing Section 702 as Freedom Caucus Republicans and many Democrats joined forces to demand reforms including the common-sense requirement that federal agencies get a probable cause warrant from a judge before searching any data involving Americans. Pulte’s appointment exemplifies why no administration should have the power granted by Section 702 without the independent judicial review required in seeking a warrant. 

Speaker Johnson has introduced a new fig leaf over the American surveillance state, the Foreign Intelligence Accountability Act. Introduced with only days to go before Section 702 of the Foreign Intelligence Surveillance Act (FISA) expires and the U.S. government loses one of its most invasive surveillance programs, the bill does nothing to make any of the substantial changes privacy advocates have been asking for --- most notably, it fails to give us a real warrant requirement for the FBI to snoop through the private conversations of people on U.S. soil.  

Section 702 needs to be reauthorized by Congress every few years. These reauthorizations give us a chance to tinker with the language of the law and introduce some much-needed reforms. This attempt at reauthorization has been particularly fraught, but there is still time for Congress to include real protection for Americans’ civil liberties and rights. We need to make sure that when an FBI agent wants to look through Americans’ conversations scooped up as part of a national security intelligence program, they need a warrant signed by a judge just as if they were trying to search your email account or your house. 

This new bill mandates that a civil liberties protection officer at the Director of National Intelligence review all queries of U.S. persons made by the FBI under this program to make sure no laws have been broken. It’s bad enough to let the intelligence community police itself, and what’s more, the assessment for illegality would be made after a U.S. person has already been spied on. This is hardly the reform we need and will likely just lead to continued abuse with no real accountability or consequences.  

The bill “prohibits targeting United States persons,” but so does current law. This “change” does absolutely nothing to address what’s really happening—which is that surveillance of people in the United States is usually justified as “incidental” because Americans aren’t the “target” of the surveillance. The bill does not create a warrant requirement, it does not create any new transparency requirements, and it does not protect Americans’ privacy.  

We urge Congress, and we urge you to write to your Congresspeople, to tell them this: Reject the surveillance state’s latest smokescreen known as the Foreign Intelligence Accountability Act and keep pushing for real reforms.  

In a dramatic middle-of-the-night stand off, a bipartisan set of lawmakers pushing for true reform and privacy protections for Americans bought us some more time to fight! They are holding out for, at a minimum, the requirement of an actual probable cause warrant for FBI access to information collected under the mass spying program known as 702.

A reauthorization with virtually no changes was defeated because a core group of lawmakers held strong; they know that people are hungry for real reform that protects the privacy of our communications. We now have a 10-day extension to continue to push Congress to pass a real reform bill. 

The Lawmakers rallied late Thursday night to reject a proposed amendment that made gestures at privacy protections, but it would not have improved on the status quo and would have reauthorized Section 702 for five more years to boot. 

Take action

TELL congress: 702 Needs Reform

Section 702 is rife with problems, loopholes, and compliance issues that need fixing. The National Security Agency collects full conversations being conducted by and with targets overseas – including by and with Americans in the U.S. –  and stores them in massive databases. The NSA then allows other agencies, including the Federal Bureau of Investigation, to access untold amounts of that information. In turn, the FBI takes a “finders keepers” approach to this data: they reason that since it's already collected under one law, it’s OK for them to see it. 

Under current practice, the FBI can query and even read the U.S. side of that communication without a warrant. What’s more, victims of this surveillance  won’t even know and have very few ways of finding out that their communications have been surveilled. EFF and other civil liberties advocates have been trying for years to know when data collected through Section 702 is used as evidence against them.  

Reforming Section 702 is even more urgent because of revelations hinted at by Senator Ron Wyden’s public statements concerning a “secret interpretation” of the law that enables surveillance of Americans, and a public  “Dear Colleague” letter he sent to fellow Senators about FBI abuse of Section 702. 

That’s right—the way the government conducts mass surveillance is so secret and unaccountable even the way they interpret the law is classified. 

 “In many cases these will be law-abiding Americans having perfectly legitimate, often sensitive, conversations,” Wyden wrote. “These Americans could include journalists, foreign aid workers, people with family members overseas - even women trying to get abortion medication from an overseas provider. Congress has an obligation to protect our country from foreign threats and protect the rights of these and other Americans.” 

We have 10 days to make it clear to Congress: 702 needs real reforms. Not a blanket  reauthorization. Not lip service to change. Real reform.

Take action

TELL congress: 702 Needs Reform

We go through this every couple of years: Section 702 of the Foreign Intelligence Surveillance Act (FISA), which of Americans’ communications with foreign persons overseas is up for renewal. As always, Congress can reauthorize it with or without changes, or just let it expire. We know, we know, it’s a pain to have to do this every few years–but it gives us a chance to lift the hood of this behemoth tool of government surveillance and tinker with how it works. That’s why it’s so important right now to urge your Member of Congress not to pass any bill that reauthorizes Section 702 without substantial reforms.   

Take action

TELL congress: 702 Needs Reform

Section 702 is rife with problems, loopholes, and compliance issues that need fixing. The National Security Agency (NSA) collects full conversations being conducted by surveillance targets overseas and stores them, allowing the Federal Bureau of Investigation (FBI) to operate in a “finders keepers” mode of surveillance—they reason that it's already collected, so why can’t they look at those conversations? There, the FBI can query and even read the U.S. side of that communication without a warrant. The problem is, people who have been spied on by this program won’t even know and have very few ways of finding out. EFF and other civil liberties advocates have been trying for years to know when data collected through Section 702 is used as evidence against them.  

There’s simply no excuse for any Member of Congress to support a "clean" reauthorization of Section 702. Anyone who votes to do so does not take your privacy seriously. Full stop.  

The intelligence community and its defenders in Congress, as always, seem more interested in defending their rights to read your private communications than in protecting your right to privacy. It’s not really a compromise between safety and privacy if it's always your privacy that gets sacrificed. Now, we’re drawing a line in the sand: Congress cannot pass a clean extension.  

Use this EFF tool to write to your Member of Congress and tell them not to pass a clean reauthorization of Section 702.  

Take action

TELL congress: 702 Needs Reform

Two years ago, Congress passed the “Reforming Intelligence and Securing America” Act (RISAA) that included nominal reforms to Section 702 of the Foreign Intelligence Surveillance Act (FISA). The bill unfortunately included some problematic expansions of the law—but it also included a relatively big victory for civil liberties advocates: Section 702 authorities were only extended for two years, allowing Congress to continue the important work of negotiating a warrant requirement for Americans as well as some other critical reforms. 

However, Congress clearly did not continue this work. In fact, it now appears that Congress is poised to consider another extension of this program without even attempting to include necessary and common sense reforms. Most notably, Congress is not considering a requirement to obtain a warrant before looking at data on U.S. persons that was indiscriminately and warrantlessly collected. House Speaker Mike Johnson confirmed that “the plan is to move a clean extension of FISA … for at least 18 months.” 

Even more disappointing, House Judiciary Chair Jim Jordan, who has previously been a champion of both the warrant requirement and closing the data broker loophole, told the press he would vote for a clean extension of FISA, claiming that RISAA included enough reforms for the moment.

It’s important to note RISAA was just a reauthorization of this mass surveillance program with a long history of abuse. Prior to the 2024 reauthorization, Section 702 was already misused to run improper queries on peaceful protesters, federal and state lawmakers, Congressional staff, thousands of campaign donors, journalists, and a judge reporting civil rights violations by local police. RISAA further expanded the government’s authority by allowing it to compel a much larger group of people and providers into assisting with this surveillance. As we said when it passed, overall, RISAA is a travesty for Americans who deserve basic constitutional rights and privacy whether they are communicating with people and services inside or outside of the US.

Section 702 should not be reauthorized without any additional safeguards or oversight. Fortunately, there are currently three reform bills for Congress to consider: SAFE, PLEWSA, and GSRA. While none of these bills are perfect, they are all significantly better than the status quo, and should be considered instead of a bill that attempts no reform at all. 

Mass spying—accessing a massive amount of communications by and with Americans first and sorting out targets second and secretly—has always been a problem for our rights.  It was a problem at first when President George W. Bush authorized it in secret without Congressional or court oversight. And it remained a problem even after the passage of Section 702 in 2008 created the possibility of  some oversight. Congress was right that this surveillance is dangerous, and that's why it set Section 702 up for regular reconsideration. That reconsideration has not occurred, even as the circumstances of the NSA, Justice Department, and FBI leadership, have radically changed. Reform is long overdue, and now it's urgent.  

While How to Fix the Internet is on hiatus, we wanted to share a great conversation with you from last week. EFF Executive Director Cindy Cohn spoke with bestselling novelist, journalist, and EFF Special Advisor Cory Doctorow about Cindy’s new book, “Privacy’s Defender: My Thirty-Year Fight Against Digital Surveillance” (MIT Press).

Privacy info. This embed will serve content from simplecast.com

You can also listen to this episode on the Internet Archive or watch the video on YouTube.

Part memoir, part battle cry, “Privacy’s Defender” is the story of Cindy’s fights alongside the visionaries who looked at the early internet and understood that the legal and political battles over this new technology - the Crypto Wars, the NSA’s dragnet, the FBI gag orders - were really over the future of free speech, privacy, and power for all. 

Cindy Cohn and Cory Doctorow at City Lights.jpg

And finally, stay tuned to this feed; we’re working on a special podcast series featuring key players and moments from the book! 

Resources: 

• The Crypto Wars: Bernstein v. US Department of Justice
• NSA Spying: Hepting v. AT&T
• NSA Spying: Jewel v. NSA
• EFF’s National Security Letter lawsuits