A bipartisan group of US senators has introduced legislation to curtail the FBI's ability to search Americans' private communications without court approval, moving to close what civil liberties groups describe as a constitutional loophole at the heart of federal foreign intelligence law.
Senators Mike Lee and Dick Durbin introduced the Security and Freedom Enhancement (SAFE) Act, which reauthorises Section 702 of the Foreign Intelligence Surveillance Act and protects Americans' privacy by establishing safeguards against warrantless surveillance. The legislation marks the latest attempt to reform a surveillance authority that has become a focal point of rare cross-party agreement on constitutional limits to government power.
The current law, set to expire on April 20, 2026, permits intelligence agencies to collect Americans' communications without a warrant when those communications are incidentally captured during surveillance of foreign targets overseas. The FBI then searches these databases using American identifiers without obtaining a warrant, conducting over 57,000 searches in 2023.
Although the program targets only foreigners overseas, it sweeps in vast quantities of Americans' communications, which may be searched without a warrant; even after implementing compliance measures, the FBI conducted more than 200,000 warrantless searches of Americans' communications in one year.
The documented abuses have become indefensible even to many officials. The FBI has acknowledged improper uses of Section 702, including searching for information on individuals involved in the January 6, 2021 Capitol riot and people arrested during 2020 racial justice protests. More recently, FBI agents conducted warrantless searches for the communications of tens of thousands of protesters, racial justice activists, 19,000 donors to a congressional campaign, journalists, and members of Congress; even after recent procedural changes, agents performed improper searches for communications of a US senator, a state senator, and a state court judge.
The SAFE Act takes a narrower approach than some reform advocates had sought. It requires intelligence agencies to obtain a FISA Title I order or warrant before accessing the contents of Americans' communications collected under Section 702, but not before running queries; the requirement is carefully crafted to be feasible to implement and flexible for security needs, and would not require a warrant for searches of foreigners' communications or searches to uncover connections between targeted foreigners and Americans; requiring a warrant only for accessing content would dramatically reduce the number of cases in which the government must seek a warrant.
The legislation also addresses a parallel problem. It closes the "data broker loophole" that intelligence and law enforcement agencies use to purchase Americans' sensitive information from commercial data brokers; the provision allows the government to purchase datasets that may include Americans' information if that information cannot be identified and excluded before purchase.
The FBI has strongly resisted warrant requirements. FBI Director Christopher Wray has argued that requiring the Bureau to obtain a warrant to query its database would hinder the FBI's ability to obtain and act upon threat intelligence; Wray stated that if there is no constitutional or legal necessity for a warrant requirement, Congress would be making a policy choice to require the FBI to blind itself to intelligence in its holdings. The FBI contends that a warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard for court approval or would require significant time and resources that the government often does not have in rapidly evolving threats.
Yet in January 2025, federal Judge LaShann DeArcy Hall ruled that conducting such queries without a warrant violates the Fourth Amendment, the first federal court to reach that conclusion. The government is appealing the ruling, but it signals that judicial scrutiny may force Congress to act.
The proposed changes would mandate warrants for searches of US person communications and revisit a 2024 provision that critics say widened the government's surveillance reach. The bill has bipartisan support, reflecting unusual consensus among lawmakers concerned about constitutional constraints on executive power, even as administration officials divided on whether surveillance tools justify the privacy trade-off.
An independent Privacy and Civil Liberties Oversight Board found that the government provided little justification for the value of warrantless searches of Americans' communications; in the handful of examples where such searches were useful, the Board noted that the government could have obtained a warrant, received consent, or invoked the exigent circumstances exception.
The bill's passage is not assured. Key members of Trump's current administration, including Director of National Intelligence Tulsi Gabbard and FBI Director Kash Patel, have embraced FISA; Patel argued firmly against adding a warrant requirement to Section 702 during his confirmation hearing. How Congress resolves the tension between security and constitutional protection before the April deadline remains an open question.