On Monday, the House Rules Committee is set to discuss Speaker Mike Johnson’s latest plan to renew Section 702 of the Foreign Intelligence Surveillance Act (FISA). The proposal comes on the heels of a dramatic scene nine days ago in which Johnson failed to jam a reauthorization of the law through the House in the dead of night. A piece of legislation put forward by Johnson that evening posed as reform, but failed to place any limits on warrantless “backdoor searches”—the government’s practice of searching Section 702-acquired data for Americans’ “incidentally” collected communications. Twelve Republicans crossed party lines to oppose voting on that legislation. And twenty Republicans joined Democrats to defeat a procedural measure that would have allowed floor consideration of a straight 18-month reauthorization of Section 702.

The defection on a procedural vote that normally breaks along party lines was a stunning rebuke of Johnson’s refusal to permit votes on real reforms. Yet, remarkably, Johnson is trying the same move again. His latest proposal is almost identical to the one the House just rejected. It does not include a warrant requirement for the government to access Americans’ communications collected under Section 702, despite clear bipartisan support for such reform. Indeed, it makes no change whatsoever to either the standard or the procedures in place for conducting backdoor searches. And its main “reform” is nothing more than a restatement of existing law regarding front-end collection. The House should once again reject this ploy and insist on being given the opportunity to vote on real reform.

Background on Section 702

Section 702 authorizes intelligence agencies to collect the communications of foreigners located outside the United States without obtaining an individualized court order. Although this warrantless surveillance may target only foreigners abroad, it inevitably captures large volumes of Americans’ communications, too, because Americans communicate with foreigners. And because foreign targets under Section 702 need not be suspected of any wrongdoing, the Privacy and Civil Liberties Oversight Board has confirmed that this “incidental” collection can include wholly innocent conversations between Americans and their friends, relatives, and colleagues overseas.

Despite a statutory directive to “minimize” the retention and use of these “incidentally” collected communications of Americans, intelligence agencies routinely search through Section 702 data with the goal of locating and reviewing Americans’ phone calls, emails, and text messages. The FBI, CIA, NSA, and National Counterterrorism Center conduct thousands of these warrantless “backdoor searches” (which the government calls “U.S. person queries”) each year.

Without a judicial check on their access to Americans’ communications, intelligence agencies have routinely abused backdoor searches to conduct improper or baseless searches. In recent years, agents have conducted searches for the communications of protesters across the political spectrum; members of Congress; a congressional chief of staff; multiple U.S. government officials, journalists, and political commentators; political campaign donors; and even people that an NSA agent met through an online dating service.

This pattern of Section 702 abuse—as well as the fundamental Fourth Amendment deficiency of warrantless searches for Americans’ communications—has resulted in longstanding bipartisan support for requiring the government to get a warrant or a FISA Title I order (a type of warrant issued by the FISA Court in foreign intelligence investigations) before accessing Americans’ communications collected under Section 702. The House has twice passed such a measure (in 2014 and 2015). When Congress reauthorized Section 702 in 2024, this reform failed in a 212-212 vote in the House.

The Johnson Proposal’s Fake Warrant Requirement

Rather than allowing the House to vote on this reform again, however, Speaker Johnson called members to the floor at 11:25 pm on April 16 to debate and vote on two other measures. The first was a proposal that had been unveiled less than an hour earlier and that members who were scrambling to get back to the Capitol barely had time to read, let alone process. That proposal would have reauthorized Section 702 for five years, and it included a smattering of provisions that made either modest changes or no changes to the law. The second was a bill that would have reauthorized Section 702 for 18 months with no changes (i.e., a “clean reauthorization”).

The leading “reform” in the five-year reauthorization proposal was titled “Warrant Requirement for Targeting for Acquisition of Communications of United States persons.” Notwithstanding its title, the provision did not create a warrant requirement for backdoor searches or for anything else.

The provision began by prohibiting the “targeting” of U.S. persons for collection under Section 702. That’s merely a restatement of existing law: Section 702 surveillance may target only non-U.S. persons outside the United States, and “reverse targeting”—intentionally targeting a U.S. person—is expressly barred.  The provision then stated that the government, under other parts of FISA and the Federal Rules of Criminal Procedure, “may seek a warrant or other appropriate order” to target an American for surveillance if it has the probable cause required by those authorities. This, too, does nothing more than parrot existing legal standards. It’s been true for over two centuries that the government may obtain a warrant to conduct surveillance in a criminal investigation, and it’s been true since 1978 that the government may obtain a probable-cause order to conduct surveillance under FISA. The so-called “warrant requirement” thus did literally nothing more than repackage existing law and present it as reform.

A majority of members were apparently not fooled—and those who spoke against the proposal on the floor did not hide their displeasure at what appeared to be an attempt to sucker them.

The new Johnson proposal repeats the same substance, but in an ostensible response to the backlash over the provision’s misleading title, it abandons any pretense of creating a warrant requirement. The provision is now titled “Fourth Amendment Requirement for Targeting United States Persons,” an acknowledgment that the provision simply restates a constitutional requirement already enshrined in the law. (It has been also demoted within the proposal; it now appears as the third substantive reform rather than the first.) The more forthright characterization, however, begs the question of why Johnson kept this empty provision in the proposal at all. It is hard to escape the conclusion that its purpose is either to confuse members or enable them to tell their constituents that they voted for privacy protections (presumably without mentioning that those protections already exist).

 In addition to accomplishing nothing, the provision is irrelevant to the issue that is at the center of the Section 702 debate. Backdoor searches are not the product of the government intentionally “targeting” U.S. persons for collection under Section 702. Rather, backdoor searches occur when the government targets foreigners outside the United States and then searches through the collected data for particular Americans’ communications that may have been “incidentally” collected. It is precisely because the government needs a warrant to target Americans for surveillance on the front end that these warrantless searches of “incidentally” collected communications represent a “backdoor.” But restating the truism that the government needs a warrant to target Americans for front-end collection does nothing to limit these back-end searches.

The Johnson Proposal’s Backdoor Search Provisions

The other provisions of the new Johnson proposal largely mirror provisions in the earlier version. Three of these address backdoor searches, and all three are ostensibly intended to bolster compliance with existing rules and standards.  As explained below, these changes would not be very effective at improving compliance.

Their main failing, however, is that they continue to permit the FBI and other agencies to access Americans’ communications without a warrant—indeed, without any individualized judicial approval—based on the current low standard, adopted by the executive branch with the FISA Court’s approval, of “reasonably likely to retrieve foreign intelligence.” That standard falls woefully short of the probable cause required to access the content of Americans’ communications in almost any other context. And while some proponents are describing the proposal as a compromise, it simply preserves the status quo when it comes to the standard and procedure for conducting warrantless backdoor searches.

Civil Liberties Officer Review of FBI Queries. Under existing law, FBI agents must document their justification for conducting a backdoor search, and that documentation is audited by attorneys in the Department of Justice’s National Security Division (NSD) for compliance with the querying standard. The new Johnson proposal requires that the Civil Liberties Protection Officer in the Office of the Director of National Intelligence also review this documentation and report any potential violation to the Inspector General of the Intelligence Community (IGIC), who must then determine whether a violation occurred.

This provision follows a familiar playbook. Throughout the 18-year history of Section 702, the response to repeated and systemic violations of court-approved rules has been to layer on additional oversight and reporting by the executive branch. Each new set of oversight procedures has at best brought a temporary respite until the next revelation of a systemic violation. As surveillance expert Julian Sanchez put it, the FISA Court and the government have been engaged in a game of “compliance whackamole.” Congress joined the game in 2024 when it codified various internal oversight and reporting requirements in the Reforming Intelligence and Securing America Act (RISAA), only to have the FISA Court identify significant compliance issues in its 2025 and 2026 opinions.

A requirement to report violations to the ICIG is unlikely to be a game-changer. It’s a particularly unpromising solution given that President Trump has fired 21 inspectors general in his second term, many without cause and in violation of federal law. In his first term, he fired the IGIC for reporting an urgent concern to Congress as required by statute. If the administration were abusing the query authority—or if a finding of violations would simply place the administration in a bad light—any inspector general who wanted to keep his or her job might well think twice about pursuing the matter. And even if the ICIG were willing to risk his position to reveal official misconduct, it would still be up to agency officials to take meaningful remedial action—something no administration has been inclined to do, even in the face of widespread violations.

Criminal Penalties for FBI Violations of Querying Procedures. The Johnson proposal provides criminal penalties if an FBI agent “knowingly and willfully” violates internal querying procedures. That’s an empty threat. In June 2023, the FBI asserted that there had been no intentional violations of the rules for backdoor searches since 2018, which means that the government considered the many egregious and obvious violations that occurred during that period to be unintentional. For instance, when an agent told NSD overseers that “he always recorded queries as not involving U.S.-person query terms even if the facts indicated otherwise, e.g., identifiers for local businesses and mosques,” that deliberate mislabeling was deemed an unintentional violation. So, too, were searches for racial justice protesters, 19,000 donors to a congressional campaign, and a state court judge who apparently drew attention because he contacted the FBI to report civil rights violations by a local police chief. If such blatant violations are considered innocent mistakes, FBI agents have little reason to believe they could actually face criminal prosecution under the Johnson proposal (and even less reason if abuses of the system are condoned, explicitly or implicitly, by the leadership of the FBI or DOJ).

Requirement for Attorney Approval of FBI U.S. Person Queries. Under RISAA, the FBI’s backdoor searches must be approved by either a supervisor or an attorney. The FBI’s internal policy requires attorney approval rather than supervisory approval. The Johnson proposal codifies that policy by removing the option to obtain supervisory approval from the statute. It therefore makes no change to existing practice.

Notably, all three of the Johnson proposal’s provisions relating to backdoor searches apply only to the FBI and add no additional oversight to the NSA, CIA, or National Counterterrorism Center. These other agencies ingest Section 702 data and collectively perform thousands of backdoor searches every year, notwithstanding the fact that they have no domestic mandate. The NSA, in particular, has a long history of violating the rules that govern those searches. The proposal, however, wrongly assumes that only the FBI’s backdoor searches raise concerns.

Miscellaneous Johnson Proposal Provisions

Attendance Procedures for Member Access to the FISA Court. The Johnson proposal rescinds existing Department of Justice (DOJ) procedures, issued after Congress enacted RISAA, that place certain limitations on access to FISA Court proceedings by members of Congress and their staff. It requires DOJ to issue procedures that comply with RISAA, which mandates such access. DOJ’s position, however, is that its existing procedures comply with RISAA. Absent more explicit guidance about what the new procedures must or may not include, DOJ will presumably issue slightly tweaked procedures that are once again inconsistent with the law.

GAO Audit of Section 702 Targeting Procedures. Finally, the Johnson proposal requires the Government Accountability Office (GAO) to audit the targeting procedures used to collect communications under Section 702, and the implementation of those procedures, to ensure that the government is in fact targeting only non-U.S. persons overseas. In theory, this could have enormous value: If it turned out the government is targeting U.S. persons under Section 702, that would be a massive constitutional violation that would call the entire program into question. In practice, however, the law limits the GAO’s ability to access foreign intelligence information if agencies choose to withhold it, and nothing in the provision would remove that obstacle. The proposal thus sets the GAO up to fail.

Moreover, while the contemplated GAO audit could potentially reveal a major problem with the program (assuming the GAO somehow managed to access the necessary information), it would do nothing to address the problem that we already know about and that has prompted members on both sides of the aisle to call for serious reform: the government’s warrantless access to Americans’ communications that have been incidentally collected in the course of targeting foreigners overseas.

Conclusion

The Section 702 sunset presents a critical opportunity for Congress to reevaluate the government’s surveillance authority and ensure adequate safeguards for Americans’ privacy and civil liberties. Preventing members from deliberating and voting on the reforms that members support elides the democratic process and denies Americans long overdue protections. House members should continue to do what they did nine days ago: reject Speaker Johnson’s efforts to force them to accept fake reforms, and insist that he allow them to vote on real ones.

There is no valid argument against this course of action. Representative Andy Biggs (R-AZ) has already filed an amendment that would require intelligence agents to obtain a warrant or FISA Title I order before accessing Americans’ communications collected under Section 702, with several exceptions designed to accommodate legitimate security needs. Johnson could easily ensure that this amendment—as well as other popular reforms that have been teed up for consideration, such as legislation to limit the government’s purchase of Americans’ sensitive data from data brokers—gets a floor vote.

Doing so would cause no delay; these amendments would be considered, and voted on, at the same time as the underlying proposal. In any event, the notion that Section 702 collection will “go dark” after April 30 absent reauthorization is simply false. The surveillance operates under year-long certifications approved by the FISA Court, and the law grandfathers existing certifications in the event the statute expires. The current certifications were approved in March 2026 and will authorize collection until March 2027 regardless of what happens on April 30. Although government officials warn that communications service providers might nonetheless refuse to comply with directives to turn over targets’ communications, that’s a straw man. Companies do not choose whether to comply with Section 702 directives. The FISA Court can compel compliance, and companies that violate such orders are subject to massive fines. Indeed, the question of whether companies can be forced to comply with directives during a lapse in the statute was resolved by the FISA Court 18 years ago.

In short, Congress has the time and the responsibility to get this right. Members can start by recognizing the Johnson proposal for what it is: a transparent attempt to preserve the status quo rather than answer the bipartisan calls for needed reform.

FEATURED IMAGE: WASHINGTON, DC – APRIL 21: U.S. Speaker of the House Mike Johnson (R-LA) speaks at a press conference at the U.S. Capitol on April 21, 2026 in Washington, DC. Johnson, who was joined fellow House Republican leaders, spoke on the ongoing partial shutdown of the Department of Homeland Security, Foreign Intelligence Surveillance Act (FISA), and rising energy prices. (Photo by Kevin Dietsch/Getty Images)