Why a Warrant Requirement Won’t Break Section 702
The controversial U.S. spy program–The Foreign Intelligence Surveillance Act (FISA) Section 702–expired over two months ago on June 12, and the sky has not yet fallen.
While this year was the first year since its original passage in 2008 that Congress let the Act lapse, authorized surveillance still continues until March 2027, when the actual FISA court certifications expire. Without a deadline pressuring a clean reauthorization, Congress has a moment to address the loopholes that allow warrantless surveillance of Americans.
Ordinarily, under the Fourth Amendment, Americans’ communications information would not be acquirable without a warrant, but if it were incidentally collected under Section 702 and stored in the database, then the Intelligence Community (IC) skips this step. The bipartisan Government Surveillance Reform Act of 2026 (GSRA) is the best reauthorization vehicle for FISA as it codifies warrant requirements and other common-sense reforms that will restore Fourth Amendment rights and prevent further abuse via AI-based analysis.
While advocates have sounded the alarm for years on how Section 702 threatens privacy, recent developments in AI and the lack of guardrails pertaining to its use in domestic surveillance have raised the stakes for ensuring civil liberties protections are embedded in the surveillance authority. Now is the time to pass the GSRA, but it has faced significant pushback from some in Congress who believe the reforms will slow critical national security investigations.
Despite protests to the contrary, reforms to the law are unlikely to undermine the program’s usefulness for national security; in fact, the program would continue with stronger protections against the warrantless AI analysis of Americans’ communications. The GSRA would ensure the IC still gets what it needs in cases that are genuinely a threat. Where the government has adequate reason to believe an American is involved in a threat, then it would likely meet a probable cause standard for a search. Additionally, there are built-in exceptions to the warrant requirement in the GSRA for any exigent circumstances where time constraints would prevent the IC from neutralizing threats to life and limb.
FISA Section 702 was designed to allow the IC to obtain foreign intelligence information. Once the Foreign Intelligence Surveillance Court approves the government’s targeting procedures for foreigners, American technology and communications companies are required to provide the target’s communications. However, if an American communicates with someone targeted by the program, their communication information is also swept up. The IC then regularly leverages the Section 702 database to warrantlessly search these Americans’ communications.
The Privacy and Civil Liberties Oversight Board, the main government watchdog for the Section 702 program, reported in 2023 that intelligence agencies have not demonstrated how warrantlessly searching Americans’ information in Section 702 databases has “nearly as significant value as the Section 702 program overall” to national security. The PCLOB has since been gutted and cannot issue new critical oversight reports.
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In its 2019 decision in United States v. Hasbajrami, the Second Circuit held that searching through the Section 702 database, known as “querying,” is a separate Fourth Amendment event from the original collection of the data, and it sent the case back to the district court to apply this principle. In 2025, the district court held that querying the database for a U.S. person requires a warrant. The judge based the decision’s reasoning on Riley v. California, which held that the government must obtain a warrant to search cell phone contents after lawfully seizing the phone itself. However, Hasbajrami stands in contrast to the FISA court in this ruling. It is up to Congress to codify this important distinction for which Hasbajrami creates a precedent.
In the 2019 decision, the Second Circuit court described Section 702 as “sweeping in its technological capacity and broad in its scope,” adding “that querying makes it easier to target wide-ranging information about a given U.S. person.”
While the information that the IC has had access to via this database has always been wide and comprehensive, the lack of guardrails to read Americans’ communications is especially concerning when AI access has broken the traditional barriers to manual analysis.
While the exact querying software is classified, it is clear military and intelligence agencies are rapidly integrating AI into investigations. Instead of a human intelligence officer piecing together conversations and other intelligence about a target over the course of hours, an AI model could continuously scan the Section 702 database for certain sentiments or attributes and flag those for law enforcement. Not only is the possibility for breadth of search wide, AI can also go deep into a single target.
AI could assist in combining Section 702 communications content with data purchased warrantlessly from data brokers (another loophole the GSRA closes), which may include geolocation, internet search history, and derived attributes revealing political, religious, travel, and social activities. From this available data, AI can build a mosaic of that person’s life.
Data can truly be essential for thwarting a threat, and AI can provide a tool for unlocking this data, yet in such cases the government can and should still be expected to obtain a warrant for reading Americans’ information and running it through AI tools. Congress must ensure that “security” does not become a blank check for surveillance of the American people.
In the cases where information is genuinely vital to national security, there are mechanisms within the GSRA for legally retrieving it.
First, the IC has argued that a warrant requirement would limit investigations because agencies often run queries to see if U.S. people may appear in the database as a first step in establishing probable cause, since they often don’t have enough evidence before the query. However, the GSRA only requires a warrant to read the contents, not to see whether a person is in the database, preserving this use of the database.
Second, opponents of warrants worry that they will slow down time-sensitive investigations, but the Foreign Intelligence Surveillance Court of Review allows an exception to the warrant requirement if there is a high probability that the information is time-sensitive and obtaining a warrant would impede national security interests. The government attempted to argue it met this standard in Hasbajrami, but in the 2025 ruling, the court concluded that the government did not sufficiently explain how obtaining a warrant would have impeded the vital interest. In the case, queries actually occurred over a series of months leading up to the arrest, indicating it was not a time-sensitive, fast-moving investigation.
The GSRA would codify this exception standard, allowing law enforcement to access information before an authorization for a warrant can be obtained if there is “imminent threat of death or serious bodily harm.” In such cases, the officer obtaining such information must provide justification within 14 days to the Foreign Intelligence Surveillance Court and appropriate committees of Congress.
AI use in surveillance greatly heightens the power asymmetry the government has to monitor and control civilians, leading to a threat to democracy and civil liberties. Protection from domestic government overreach is as critical as defense against foreign threats because the federal government maintains a monopoly on the legitimate use of force within U.S. borders. Because the federal government possesses the unique power to deprive individuals of liberty or property, Americans require robust Fourth Amendment guardrails to ensure they are not unfairly targeted by the very institutions meant to protect them.
Opponents of the GSRA claim that warrant requirements will slow investigations and threaten security. This is a legitimate concern, on its face, but there is thin evidence supporting this claim. By contrast, there is already clear evidence of AI supercharging domestic surveillance and threatening civil liberties.
The Government Surveillance Reform Act, with its exceptions for exigent circumstances and attention to legal loopholes, addresses national security concerns while implementing necessary guardrails for intelligence operations in the age of AI. This does not mean that AI cannot be used to assist investigations or protect American security, but simply demands that these tools be used within constitutional processes. Congress must pass the GSRA, not to weaken the national security apparatus, but to maintain the very ideals that apparatus was created to protect.
Not only can assurance science help analyze and prevent such crises, but it could also contribute to critical long-form analysis of model behaviors, pinpointing when and why AI models take unwanted actions, allowing for targeting additional safeguards.
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