Senators Mike Lee (R-UT) and Dick Durbin (D-IL) introduced the bipartisan SAFE Act on February 23, 2026, a bill that would force government agencies to obtain warrants before accessing Americans’ communications swept up under FISA Section 702. The legislation targets a surveillance authority that allowed the FBI to conduct over 200,000 warrantless searches of U.S. persons’ data in a single year, and it arrives as courts, Congress, and the intelligence community remain split on where national security ends and Fourth Amendment protections begin.
What the SAFE Act Would Change
Section 702 of the Foreign Intelligence Surveillance Act permits the government to collect communications of foreign targets located abroad without individual warrants. The problem that has drawn bipartisan criticism is what happens next: once that data is stored, FBI analysts can query it using identifiers tied to American citizens or residents, effectively searching their communications without a court order. The SAFE Act’s statutory text would generally prohibit government access to communications content and certain other information returned in response to U.S.-person queries unless agencies first secure a warrant or court order.
Senator Lee framed the scale of the issue bluntly. “That’s unacceptable,” he said of the volume of warrantless searches, adding that the bipartisan SAFE Act “is a commonsense solution to continue protecting our country from foreign threats” while restoring constitutional guardrails, according to a joint announcement from Lee’s office. The bill also requires government agencies to obtain approval from the Foreign Intelligence Surveillance Court before accessing query results, rather than relying on internal compliance procedures alone.
Over 200,000 Warrantless Searches in One Year
The political urgency behind these reforms is driven by hard numbers. Senator Durbin cited the FBI conducting over 200,000 warrantless searches in a year when announcing bipartisan reform legislation on the Senate floor, underscoring how often Section 702 data has been used to look for information about Americans. Those figures draw from annual transparency reports published by the Office of the Director of National Intelligence, which contain the FBI’s year-over-year U.S.-person query totals and explain methodology changes including de-duplicated counting methods adopted in recent reporting cycles.
An Associated Press analysis pegged to one of those ODNI reports found a significant decline in FBI queries over time, but even reduced numbers remain in the hundreds of thousands. The drop suggests internal policy adjustments at the Bureau, yet reformers argue voluntary restraint is not a substitute for legal requirements. Without a statutory warrant mandate, a future administration could reverse any internal limits overnight, leaving the same surveillance pipeline intact for potential abuse.
To understand the trajectory, observers often turn to the intelligence community’s own transparency data. The ODNI’s public database of statistical transparency reports tracks how often agencies use Section 702 and related tools, providing one of the only official windows into the scale of surveillance. Privacy advocates point to these numbers as evidence that incidental collection of Americans’ communications is not a rare side effect but a structural feature of the program.
The Data Broker Loophole
The warrant debate extends beyond querying Section 702 databases. A separate but related problem involves government agencies purchasing sensitive data, including geolocation information, from commercial data brokers. A House committee report on the Fourth Amendment Is Not For Sale Act documented how gaps in the Electronic Communications Privacy Act enable agencies to buy data that would otherwise require a warrant, court order, or subpoena to obtain directly from a phone company or tech platform.
This loophole means that even if Congress imposed strict warrant requirements on Section 702 queries, the government could still acquire much of the same information through commercial purchases. A House amendment, H.Amdt.255 to the 2024 defense authorization bill, sought to close that gap by limiting government purchases of data that would otherwise require legal process. Both the SAFE Act and earlier House reform proposals include explicit provisions targeting this data broker workaround, reflecting a growing consensus that surveillance reform must address commercial acquisition alongside intelligence collection.
Legal analysts at the Congressional Research Service have warned that the evolving market for digital information complicates traditional Fourth Amendment doctrine. Their work on electronic surveillance and privacy law notes that when data is available for sale on the open market, the line between government surveillance and commercial monitoring can blur, raising new questions about how constitutional protections should apply.
House Efforts and Emerging Proposals
The Senate bill builds on momentum from the House, where the Protect Liberty and End Warrantless Surveillance Act of 2023 advanced through committee. That bill’s committee report laid out a framework requiring a FISA Court order or warrant prior to U.S.-person queries of Section 702 information, along with transparency requirements, auditing mechanisms, and penalties for violations. It also included an explicit data broker purchase loophole closure, drawing on ODNI transparency reports to quantify the scope of warrantless searching.
House investigators who examined government data purchases concluded that statutory reform was necessary. In detailing the need for the Fourth Amendment Is Not For Sale Act, a separate House report described how agencies had turned to commercial vendors to obtain location and other sensitive records, effectively bypassing the warrant requirements that apply when seeking the same information directly from service providers.
Lawmakers attempted to translate those findings into binding limits on executive branch behavior. The House floor debate around H.Amdt.255 highlighted concerns that without clear statutory language, agencies could continue to rely on data brokers as an end run around FISA and the Stored Communications Act, even as Congress debated tightening rules for intelligence collection.
More recently, Representative Warren Davidson introduced a separate FISA reform bill in March 2026 that goes further by updating privacy protections for AI and other modern technologies while requiring federal law enforcement to obtain a warrant. Davidson’s proposal signals that the warrant debate is expanding beyond legacy surveillance programs to address how artificial intelligence tools could amplify the reach of government data access, including by rapidly analyzing large datasets acquired through both intelligence authorities and commercial purchases.
FBI Opposition and a Key Court Ruling
The FBI has pushed back forcefully against any warrant requirement. FBI Director Christopher Wray argued that imposing such a mandate would impede investigations and endanger national security, contending that the Bureau’s constitutional and legal framework does not require warrants for querying already-collected Section 702 data. He has emphasized that queries are subject to internal rules, training, and audits, and that agents use the tool to identify threats ranging from foreign terrorism to cyber intrusions.
Wray’s position rests in part on the idea that once communications are lawfully collected for foreign intelligence purposes, subsequent searches of that database are not new “seizures” in the constitutional sense. Civil liberties groups and many lawmakers disagree, arguing that when an analyst runs a query using an American’s name, phone number, or email address, that search should be treated as a distinct investigative step that requires judicial approval.
Courts have begun to grapple with that tension. A recent opinion by the Foreign Intelligence Surveillance Court of Review examined whether the FBI’s querying practices complied with statutory and constitutional limits, scrutinizing how often agents ran U.S.-person searches and under what standards. While the court allowed Section 702 to continue, it also pointed to compliance problems and urged stronger safeguards, giving reform advocates fresh ammunition in the legislative fight.
Outside Congress and the courts, nonpartisan legal experts have cataloged the competing arguments. A Congressional Research Service analysis of FISA reauthorization debates outlines how supporters of Section 702 stress its role in disrupting plots and attributing cyberattacks, while critics focus on the breadth of incidental collection and the lack of individualized suspicion when Americans’ communications are swept in. That research underscores that the dispute is not over whether foreign intelligence collection should exist, but over how tightly it should be fenced when it intersects with domestic privacy.
What Comes Next for Section 702 Reform
The SAFE Act enters a crowded legislative field. Some lawmakers favor narrower adjustments, such as codifying existing FBI querying rules or modestly expanding reporting requirements. Others insist that a warrant requirement for U.S.-person queries is the minimum acceptable reform, and that any bill lacking that core protection would simply ratify the status quo.
Negotiations will likely hinge on carve-outs and exceptions. Intelligence officials have floated ideas such as emergency authorities that allow agents to run time-sensitive queries without a warrant, followed by rapid court review. Privacy advocates warn that if those exceptions are too broad, they could swallow the rule and leave most searches effectively warrantless in practice.
Another fault line concerns transparency. Reformers want more detailed public statistics about how often agencies run U.S.-person queries, how many are tied to criminal investigations rather than pure foreign intelligence, and how frequently data obtained through Section 702 is used in ordinary prosecutions. The intelligence community has gradually expanded its public reporting, but many of the most contested figures remain classified or heavily aggregated.
For now, the SAFE Act’s sponsors are betting that a clear warrant rule, coupled with closing the data broker loophole, can command a bipartisan coalition. They argue that Americans should not lose their Fourth Amendment rights simply because their messages crossed an international border or because their location history is available for purchase. Whether that argument prevails will determine not only the future of Section 702, but also the broader balance between digital-age surveillance powers and constitutional privacy in the United States.
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*This article was researched with the help of AI, with human editors creating the final content.
