With a lot of help from his Democratic friends, House Speaker Mike Johnson managed to pass a three-year extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA) early Wednesday evening. But the only way he could appease Republican hard-liners was by attaching a ban on central bank digital currencies, a pro-crypto rallying cry for Freedom Caucus types, to the bill. A CBDC ban will get almost universal opposition from Senate Democrats, and even Senate Majority Leader John Thune (R-SD) has said the bill is doomed in his chamber.

Thune is angling for a 45-day extension of the program to allow for more debate; it’s unclear whether the House will allow that to pass. The underlying statute expires tonight.

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The 702 program gives U.S. intelligence agencies the authority to collect communications data on foreign intelligence targets abroad. In practice, however, it has allowed those agencies to amass troves of data on American citizens that can be accessed without a warrant. None of the so-called reforms greenlit by the House this week include meaningful Fourth Amendment protections, as many privacy and civil liberties advocates in both parties were calling for.

Ahead of Wednesday’s vote, Rep. Jim Himes (D-CT), ranking member on the House Permanent Select Committee on Intelligence, once again whipped his Democratic colleagues into willfully refusing to resolve the issue of warrantless searches, according to emails seen by the Prospect. Members of the ranking member’s staff emailed legislative directors for House Democrats on Wednesday afternoon, recommending they vote in favor of the extension.

Himes and these 41 Democrats joined 192 Republicans in voting for the three-year extension: Jared Golden (D-ME), Josh Gottheimer (D-NJ), Marie Gluesenkamp Perez (D-WA), Tom Suozzi (D-NY), Pete Aguilar (D-CA), Laura Gillen (D-NY), Gil Cisneros (D-CA), Vicente Gonzalez (D-TX), Susie Lee (D-NV), Mike Quigley (D-IL), Marilyn Strickland (D-WA), Ami Bera (D-CA), Herb Conaway (D-NJ), Kristen McDonald Rivet (D-MI), Josh Riley (D-NY), Sanford Bishop (D-GA), Henry Cuellar (D-TX), Josh Harder (D-CA), Jared Moskowitz (D-FL), Brad Schneider (D-IL), Derek Tran (D-CA), Nikki Budzinski (D-IL), Don Davis (D-NC), Frank Mrvan (D-IN), Kim Schrier (D-WA), Gabe Vasquez (D-NM), Janelle Bynum (D-OR), Lois Frankel (D-FL), Chrissy Houlahan (D-PA), Donald Norcross (D-NJ), Terri Sewell (D-AL), Marc Veasey (D-TX), Ed Case (D-HI), Steny Hoyer (D-MD), Eric Sorensen (D-IL), Debbie Wasserman Schultz (D-FL), Kathy Castor (D-FL), Greg Landsman (D-OH), Scott Peters (D-CA), Darren Soto (D-FL), and George Whitesides (D-CA). Their combined voting power was enough to overcome the 22 House Republicans who defected from their party to reject Section 702 reauthorization.

“There is no way to replace the value that Section 702 provides, and the loss of this authority would be devastating,” said Himes, “so given the binary choice between reauthorization and expiration, the responsible choice is reauthorization.”

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While warrant requirements have dominated the ongoing debate over Section 702, Congress once again seems to be a step behind the technological curve. That could prove costly, as “the government could use AI to process huge amounts of disparate data to identify Americans for warrantless searches,” Sen. Ron Wyden (D-OR) said on the Senate floor earlier this week.

“These technological advances are happening very fast, and Congress needs to step up and protect Americans,” he said. “New tools require new rules.”

On Thursday and in conjunction with a temporary extension of the program, Wyden proposed declassifying the opinion of the Foreign Intelligence Surveillance Court (FISC), which has recertified Section 702 through next year, meaning searches may be able to continue even if the statute expired, though there would likely be litigation.

Declassification is already required by law. Wyden is simply proposing “that the opinion be declassified now before Congress votes on renewing Section 702,” he said.

The demand for declassification prompted a thinly veiled threat from Sen. Tom Cotton (R-AR), who said in response to Wyden: “One of these days there are going to be some consequences, and it may be while I’m the chairman of this committee.”

For his part, Himes has suggested that the 702 program “is not a dragnet” and “not an authority that can be used to surveil Americans.” He also downplayed the potential use of AI analysis. “[The 702 database] does not contain any commercially acquired information, and it does not use artificial intelligence to analyze collected data.”

According to Patrick Eddington, senior fellow in homeland security and civil liberties at the Cato Institute, FISA authorities like the NSA engage in what is known as “upstream collection,” where the government acquires communications data by tapping directly into telecommunications infrastructure. Intelligence agencies also separately acquire commercially available data through downstream collection. Between the two methods, it is perhaps inevitable that Americans’ private communications are swept up in this surveillance dragnet.

Contrary to what Himes has claimed, the 702 program has been used to target Americans, including activists, journalists, government officials, and even exes. What happens when an AI agent is tasked with searching for U.S. person information?

“That’s something that can be done in a matter of seconds,” Eddington told the Prospect. “AI could provide a massive shortcut to be able to take a look at lots of people in a much [shorter] period of time.”

What’s more, if the data itself contains system errors, “that’s going to get carried all the way through to the end,” he said, “and of course, we’ve already seen this with some other surveillance programs.”

Eddington pointed to the U.S. Terrorist Watchlist, which is managed by the FBI’s Terrorist Screening Center and has been criticized for identifying hundreds of thousands of people, including American citizens, as terrorism suspects based on broad, often opaque standards.

Congress is still trying to solve a problem that National Security Agency (NSA) whistleblower Edward Snowden revealed more than a decade ago: warrantless searches. “As is so often the case with Congress and technology issues, Congress is lagging behind in its response to [AI],” Eddington said.

As FISA Bill Implodes, Himes Boosted Version He Called ‘Unacceptable’

For Wyden, it’s past time to implement warrant requirements, and Congress must rise to the occasion and rein in AI-driven surveillance before it’s too late.

As NBC News reported, Wyden sent a letter to the nation’s top AI companies late last month asking whether they would consent to the federal government using their technology to surveil Americans. Anthropic responded that the company’s usage policy prohibits users from engaging in “unauthorized surveillance or tracking of individuals,” but noted that the company had granted an exception to “a small number of national-security customers, permitting the use of our models for foreign intelligence analysis in accordance with applicable law.” Anthropic acknowledged that foreign intelligence information may include “incidentally collected U.S.-person information.”

Both Anthropic and Google emphasized the need to safeguard individuals’ privacy and constitutional rights. OpenAI and xAI, owned by Elon Musk, did not respond to Wyden’s letter at all.

Wyden’s Government Surveillance Reform Act would prevent warrantless backdoor searches of U.S. citizen communications, and stop intelligence agencies from purchasing commercially available data without a warrant. The bipartisan legislation would also establish guardrails around AI in government surveillance by requiring intelligence agencies to obtain a warrant before accessing Americans’ location information, web browsing data, and related records.

“AI has everything to do with how we think about surveillance in this country,” said Donald Bell, policy counsel at the Project on Government Oversight (POGO). “Now is definitely the time for Congress to be thinking about how artificial intelligence can be abused, and what protections need to be put in place right now to ensure … protections for Americans.”

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James Baratta is a writing fellow at The American Prospect. He previously worked as a reporter at MandateWire from the Financial Times. His work has appeared in Truthout, Politico, and The Progressive. James is a graduate of Ithaca College and a life-long member of the Alpha Kappa Delta International Sociology Honor Society. He is currently based in New York City.