Surveillance Reform Hinges on How Congress Defines ‘Query’

The only reason we know that U.S. intelligence agencies will maintain their sweeping spying powers under Section 702 of the Foreign Intelligence Surveillance Act (FISA) through March 2027, irrespective of whether Congress extends the program ahead of its statutory deadline in mid-June, is because of the Fourth Estate.

On April 9, The New York Times revealed that the Foreign Intelligence Surveillance Court (FISC) judge who authorized the program’s annual recertification in a March 17 ruling “also objected to tools that agencies with access to the raw data … have created to allow analysts to process messages.”

In analyzing this data, the FBI and National Security Agency (NSA) use filter tools to sift through queries for information on individuals who have communicated with foreign intelligence targets, thus making them legal targets for surveillance. Apparently, those tools are prone to misuse. The FISC ruling requires intelligence agencies to “re-engineer the filter tools to comply with rules for queries for Americans’ information,” according to the Times, which obtained unclassified talking points the Trump administration sent to members of Congress in the run-up to House Republican leadership’s initial push to pass a clean reauthorization of the 702 program.

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What this means is unclear, as the opinion itself has not been declassified. FISC opinions with significant legal interpretations are subject to a declassification review, and must be made public within a period of 180 days.

Given the looming statutory deadline for Section 702, it seems fair to suggest that declassifying the opinion would allow policymakers to make an informed decision about the future of the government’s warrantless spying program. Moreover, it may prove instructive for members of Congress seeking to craft reforms that strengthen Americans’ constitutional rights. One such member of Congress is Sen. Ron Wyden (D-OR).

Wyden “secured a commitment” on April 30 after proposing that the Senate’s 45-day extension of Section 702 should also require an expedited declassification review and public release of the FISC opinion. That commitment came in the form of a letter from Sens. Tom Cotton (R-AR) and Mark Warner (D-VA), chair and vice-chair of the Senate Select Committee on Intelligence, respectively, to the Office of the Director of National Intelligence (DNI) and the Justice Department’s Office of the Attorney General.

“Under the law, your offices are currently conducting a declassification review for the purposes of making this FISC opinion and order publicly available, consistent with the protection of sources and methods, as soon as practicable,” the letter explains. “In order to inform the Senate debate on reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, we expect that this declassification review will be completed, and the FISC opinion released publicly, within 15 days.”

That window is closing, and since Cotton objected when the Senate tried to pass the 45-day extension with Wyden’s declassification provision by unanimous consent, DNI and the Justice Department could still decline the committee’s request.

“If [they] fail to declassify this opinion in the window that’s been requested, it would be concrete proof that the government is hiding information from Congress before a critical vote on whether to continue the program or reform it,” said Sean Vitka, executive director of Demand Progress. “Congress tends not to look favorably at that.”

FISA authorities conduct U.S. person queries of 702-acquired data using “selectors”—email addresses, phone numbers, and other unique identifiers—that are associated with an American citizen, lawful permanent resident, or domestically incorporated company. Such queries are subject to certain restrictions. For instance, U.S. person queries performed by the FBI must be “reasonably likely” to return information on foreign intelligence targets, and prior to conducting said queries, FBI personnel also need a supervisor or agency attorney to approve them.

“There are rules for queries that Congress has set forth, even though they fall short of a warrant, and they fall short of what’s needed,” Elizabeth Goitein, senior director of liberty and national security at the Brennan Center for Justice, told the Prospect.

According to Goitein, the filtering tools the FISC judge took issue with enable the FBI to select from lists of non-U.S. and U.S. persons in communication with foreign intelligence targets whose information “had already been pulled from the bigger pile” of 702-acquired data, though she acknowledged it remains unclear how analysts “identify specific U.S. persons within those lists, or what the selection process actually looks like exactly.”

In 2024, Congress passed the Reforming Intelligence and Securing America Act (RISAA). As the Brennan Center observes, RISAA was “authored by longtime opponents of Section 702 reform in an attempt to stave off more meaningful changes.” Despite some modest reforms, RISAA merely codified the FBI’s existing internal protocols, which the agency “previously implemented and that had already proven to be insufficient to stop abuse,” according to the Brennan Center.

“Congress needs to redefine ‘query’ in order to make sure that we’re not seeing these creative interpretations by the FBI,” Goitein told the Prospect. Asked what clarifying that definition might look like, she said it would be prudent to ensure it applies to any search performed for the purposes of accessing or locating U.S. person information “no matter where it lives or how it’s retrieved.”

A fixture among longtime opponents of Section 702 reform is none other than Rep. Jim Himes (D-CT), ranking member of the House Permanent Select Committee on Intelligence. When the Prospect pressed Himes about the so-called “reforms” outside a town hall in March, his response was: “These are in law … There were 50 reforms that we can get a list of that actually had a very substantial positive effect.”

If intelligence hawks are to be believed, compliance at the FBI has improved dramatically. The reality, however, is that the data behind this claim comes directly from what the FBI, Justice Department, and DNI have publicly reported.

DNI published its Annual Statistical Transparency Report for the 2025 calendar year on April 1. According to that report, the number of U.S. person queries by the FBI increased “slightly” by 34 percent year-over-year, “but remained lower than previous years.”

Goitein contends that the reported figures misrepresent how many U.S. person queries the FBI made because an unknown number of those queries are happening under the radar.

“It is really important to pierce through this myth that compliance issues are in the past,” Goitein said. “On the one hand, the use of these tools to conduct queries under the radar is itself a massive compliance violation that is important for Congress to see and understand, but it also means that there may be more granular compliance violations in the form of abuses of U.S. person queries that we just don’t know about.”

Either the FBI has become much more diligent about honoring the rights of criminal defendants, or these Brady searches are being misused. You can guess which explanation I think is more likely.”
Elizabeth Goitein, senior director of liberty and national security, Brennan Center for Justice

The DNI report only reflects known searches. Still, some of the findings are explosive.

U.S. person queries performed for Brady purposes, or to comply with a prosecutor’s obligations to turn over exculpatory information to defendants in criminal cases, saw a tenfold increase last year, climbing to 1,083 from 113 throughout the reporting period; it was 17 in 2023.

“One of two things have happened: either the FBI has become much more diligent about honoring the rights of criminal defendants, or these Brady searches are being misused,” Goitein said. “You can guess which explanation I think is more likely.”

In the wake of the 9/11 terrorist attacks, Congress passed Section 215 of The Patriot Act to amend FISA Title V, which allows the FBI to seek FISC approval for access to “any tangible thing,” so long as it was acquired in connection with an authorized national security investigation and for foreign intelligence purposes. Under this authority, the FBI can acquire communications metadata like phone call records, but it can no longer engage in bulk metadata collection. Section 215 expired in March 2020.

The exception to its expiration, however, is a grandfather clause granting the FBI the ability to invoke Title V authority for investigations that either began before the sunset of the surveillance law, or investigations into alleged offenses that are believed to have taken place prior to Section 215 expiring.

Last year, the number of unique identifiers associated with information collected under Section 215 increased by a whopping 324 percent, surpassing 268,000, “which is the highest it’s ever been for an authority that literally doesn’t exist anymore,” Goitein told the Prospect. “Something is very wrong there.”

DNI did not answer any of the Prospect’s questions regarding the transparency report, nor did it specify whether it intends to declassify the FISC opinion within the window requested by Senate Intelligence Committee leadership.