Congress is staring down the clock on a looming deadline for Section 702 of the Foreign Intelligence Surveillance Act — a powerful warrantless surveillance authority — for the third time in less than two months. We can escape this chaotic quagmire, but only if congressional leaders stop stonewalling and allow votes on reforms, which until now had always been the expected norm.
Given its controversial nature and history of abuse — FISA 702 has previously been misused by the FBI to pull up private messages of protesters, politicians, campaign donors, and journalists — the periodic reauthorization debates for this law have always proven challenging. But this year has reached an unprecedented level of dysfunction. Over the past eight weeks, last-minute efforts to extend FISA 702 for the rest of the Trump presidency have twice imploded in disastrous fashion, with lawmakers passing short-term extensions to stall for time and recalibrate. And it appears the third time will not be the charm — last week brought another late-night meltdown, with a majority of senators rejecting the latest effort to extend FISA 702 without any meaningful changes.
Why is FISA stuck? House Speaker Mike Johnson (R-LA) has blamed members of the House Freedom Caucus, who are calling for a warrant rule, the privacy reform at the center of the FISA 702 debate, while Senate Majority Leader John Thune (R-SD) faults Democrats demanding new guardrails against abuse. But the true culprits are these congressional leaders themselves, who have disregarded the practice that has always been both the norm and crucial to successful resolution on FISA: allowing an open debate and votes on reforms.
Over the past decade, FISA 702 has come up for reauthorization numerous times, and until now, those debates always included votes on privacy protections. As an expert on national security surveillance law deeply involved in each of those reauthorizations, I’ve seen firsthand how crucial this open process is, given FISA’s complexity. It’s a cross-partisan issue that has always split both Democratic and Republican caucuses, and multiple committees claim concurrent jurisdiction over reauthorizations. This means that the views of party leaders and committee chairs often don’t represent the views of many of their members. The only way to ensure the rank and file get a fair say is by holding votes on the floor.
An open process is also essential to fulfilling the purpose of a sunset provision for a law like FISA 702: It gives lawmakers a meaningful chance to consider changes to the law, and not simply rubber-stamp a power as fraught and susceptible to abuse as warrantless surveillance.
When FISA 702 was up for renewal in 2018, the House voted on competing bills, one with major reforms and another largely preserving the status quo. During the last reauthorization in 2024, both chambers held floor votes on a series of privacy amendments, in particular the proposal requiring a warrant to query Americans’ private messages that has been a focal point of the debate.
This year, Johnson and Thune have broken with that process entirely, adopting a take-it-or-leave-it approach and refusing to allow votes on any reform bills or amendments that would add meaningful new safeguards. This is a recipe for failure, and the calamitous process has borne that out. And it’s especially egregious given that a FISA Court ruling recently highlighted ongoing misconduct and failure to perform required audits for queries of Americans’ communications. The intelligence community continues to hide the details of that ruling from the public despite bipartisan calls from Intelligence Committee leaders for its release.
DEMOCRATS SHOULD SUPPORT CRITICAL INTELLIGENCE PROGRAM
There are straightforward paths out of this stalemate. Numerous bipartisan bills have been introduced to extend FISA 702 several years with meaningful reforms. These proposals would protect Americans from surveillance abuse without compromising security needs, and could pass if votes on these bills were allowed on the floor. Or Leadership could call up their preferred legislation but allow amendment votes on key reforms — most notably a warrant rule for queries of Americans’ communications, letting a genuine debate play out and an accord to emerge.
Giving up control is obviously not what congressional leaders want. But it’s the only way to resolve what’s become a dangerous deadlock. It’s time to resolve this issue and allow votes on reform for FISA 702.
Jake Laperruque is deputy director of CDT’s Security and Surveillance Project. Prior to joining CDT, Jake worked as senior counsel at the Constitution Project at the Project On Government Oversight. He also previously served as a program fellow at the Open Technology Institute, and a law clerk on the Senate Subcommittee on Privacy, Technology, and the Law. Jake is a graduate of Harvard Law School and Washington University in St. Louis.