The Spying Loophole Congress Won't Close

A surveillance tool designed for foreign targets has spent two decades collecting American communications without a warrant requirement.

Apr 28, 2026

For nearly 50 years, Congress has tried to draw a line between the government’s need to monitor foreign threats and every American’s constitutional right to be free from government surveillance without cause. That line has never held perfectly. It tends to blur most when the executive branch decides national security requires it.

The Trump administration has made that line harder to see than at any point since the Nixon era. The same administration that has invoked national security to justify mass deportations without due process, demanded voting data from states, and moved to consolidate federal databases across agencies, is now asking Congress to extend, without a warrant requirement, a surveillance authority that gives the FBI access to Americans’ private communications. Congress has until April 30 to decide whether to keep saying yes.

How the Database Gets Built

The story starts in the 1960s and 1970s, when the FBI surveilled civil rights leaders, antiwar protesters, and political opponents of sitting presidents, all without legal authority, all under the label of national security. The assumption, then as now, was that Americans who protest their government must have foreign sponsors. The Church Committee exposed the abuses. Congress responded in 1978 by passing the Foreign Intelligence Surveillance Act (FISA), which for the first time required judicial oversight of foreign intelligence surveillance. The name describes what Congress was regulating: the government’s practice of calling domestic surveillance foreign intelligence work to avoid legal accountability. FISA required that any surveillance work obtain a warrant. Ending the loophole.

That line held for about 25 years. After September 11, 2001, the Bush administration began conducting warrantless surveillance of Americans’ international communications in secret, in violation of FISA and outside the law. When the New York Times exposed the program in 2005, the administration did not shut it down. It went to Congress and asked for legal cover. Congress provided it. The result was Section 702, added to FISA in 2008. The original FISA required a warrant. Section 702 changed that to a warrant is not needed if the target is located outside the United States, even if American communications are swept up in the process.

Here is how it works. The government designates foreign nationals located outside the United States as surveillance targets. It issues directives to American technology companies, Google, Microsoft, and others, requiring them to hand over those targets’ communications. When a foreign target communicates with someone in the United States, that American’s side of the conversation is collected too. This is called incidental collection. The result is a database held by the intelligence community containing the private communications of millions of Americans: emails, texts, and phone calls.

The Backdoor

Congress knew American communications would be swept up. Its response was to require agencies to minimize the retention and use of that data. What it did not anticipate was that the intelligence community would find a way to exploit that gap.

The government calls these searches “U.S. person queries.” Critics call them backdoor searches: the government cannot wiretap an American without a court order, but it can search a database it knows contains that American’s communications without one.

The scale of these searches is worth noting, as are the FBI’s persistent efforts to get around the rules. In 2021 alone, the FBI conducted up to 3.4 million searches of Americans’ communications. Searches have targeted George Floyd protesters, January 6 participants, 19,000 donors to a congressional campaign, members of Congress, and people who simply called the FBI to report a crime. Even after modest new safeguards were put in place in 2024, the Justice Department discovered the FBI had been quietly using a querying tool that bypassed those safeguards entirely. It took months to shut it down. The pattern is consistent: the database has been used wherever the government saw a threat, defined broadly.

One more thing Congress did not anticipate in 2008: artificial intelligence. AI-assisted analysis can now query, pattern-match, and summarize communications at a scale and speed that makes the word “incidental” functionally obsolete. The legal framework has not kept pace with what the government can now do technically with the data it collects.

What Congress Is Being Asked to Decide

Andrew Weissmann, who served as FBI General Counsel from 2011 to 2013, identifies three options before Congress:

Clean reauthorization: extend Section 702 as written, FBI access to the database unchanged.
Reauthorization with a warrant requirement: before the FBI searches Americans’ communications in the database, a federal judge must approve.
Do nothing and let the authority expire on April 30.

Last week, House Republican leadership tried to pass a five-year clean extension in the middle of the night. Twenty Republicans joined Democrats to defeat it. A second attempt failed. What passed was a 10-day stopgap. Bipartisan negotiations are now underway, but whether any final deal will include a genuine warrant requirement is unresolved.

What “Trust Us” Has Come to Mean

Congress has reauthorized Section 702 three times since 2008. Each time, the intelligence community has made the same argument: a warrant requirement would create delays that cost lives. Each time, Congress has accepted that claim largely on faith. It has never been independently verified.

It is worth noting that this debate does not break down along party lines. A cross-partisan coalition of libertarian conservatives, think Rand Paul and Thomas Massie, and progressive Democrats has been trying to rein in warrantless surveillance of Americans since 2012. They have lost every reauthorization vote.

The question for April 30 is whether the current political environment changes the calculus for enough members to matter. The administration asking Congress to trust it with warrantless access to Americans’ communications is the same one invoking national security to expand executive power across immigration, voting data, and federal databases. We have been here before. FISA was created because the executive branch spent decades surveilling Americans without legal authority and calling it national security. Congress drew a line. The line moved. It is up for renewal again.

What You Can Do

The ACLU has a current action page at action.aclu.org that connects you directly to your representative and senators in under two minutes. The Brennan Center’s resource page is the most comprehensive source for anyone who wants to go deeper on the history, the abuses, and the reform proposals currently on the table.

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