On Thursday, privacy and surveillance experts, along with U.S. lawmakers from both parties, raised concerns regarding the Federal Bureau of Investigation's (FBI) ongoing access to Americans' communications without a warrant, facilitated by Section 702 of the Foreign Intelligence Surveillance Act (FISA). This law, initially intended for foreign intelligence purposes, is now seen as a potential tool for domestic surveillance.

During a House Judiciary Committee hearing, four witnesses—including a former U.S. attorney, a conservative litigator, a civil liberties advocate, and a tech-policy analyst—advocated for Congress to impose a probable-cause warrant requirement for searches of the extensive government database created under Section 702 or to allow the authority to expire during its upcoming reauthorization.

Brett Tolman, a former U.S. attorney, criticized the original assurances given to Congress regarding the law's use, stating that it has become a means for warrantless surveillance of Americans. He emphasized that the legal and political environment has shifted, particularly under the Trump administration, which has seen an increase in executive power and a corresponding decrease in oversight of surveillance practices.

A federal court has ruled that warrantless searches of Americans' Section 702 data constitute Fourth Amendment searches and are unconstitutional in certain cases. Concerns were raised that the current administration is centralizing federal data and may target groups based on political beliefs, which could lead to the misuse of surveillance tools against domestic opponents.

The hearing revealed a rare bipartisan coalition against the Section 702 program, with members from both liberal and conservative backgrounds expressing distrust of the administration's domestic intelligence activities. Representative Pramila Jayapal, a Democrat from Washington, noted the importance of constitutional protections regardless of which party is in power.

Section 702, enacted in 2008 and renewed multiple times, allows the government to compel U.S. technology and communications companies to provide communications of non-U.S. persons believed to be overseas without individualized court orders. However, this collection often inadvertently includes communications of U.S. persons, raising significant privacy concerns.

The data collected is stored in large government databases managed by the National Security Agency (NSA) and shared with the FBI, CIA, and the National Counterterrorism Center. Agents can query these databases using Americans' names or contact information without judicial oversight, a practice referred to as a "backdoor search."

Witnesses at the hearing highlighted that Section 702 has strayed from its original purpose as a foreign terrorism surveillance program, becoming a source of warrantless access to Americans' communications. They argued that the current safeguards are insufficient, as the FBI can still conduct searches without a warrant, undermining Fourth Amendment protections.

The FBI reportedly conducted over 57,000 such searches in 2023, although officials claim this number has decreased due to recent reforms. Critics argue that the reforms do not adequately address the fundamental issues of oversight and accountability.

The discussion also touched on the broad definition of entities that can be compelled to assist in surveillance, which now includes many businesses that may not have intended to participate in government surveillance activities. Additionally, the practice of purchasing sensitive data from private companies without a warrant was criticized, as it circumvents constitutional protections.

The witnesses and lawmakers concluded that the future of Section 702 hinges on whether it will remain a foreign intelligence tool subject to constitutional constraints or continue to operate without adequate oversight, potentially leading to systemic violations of privacy rights.