A Warrant Requirement for FISA Section 702

The Fourth Amendment was written precisely because the people who founded this country had lived under a government that searched their homes, papers, and correspondence without specific cause. Two centuries later, Congress has built a domestic surveillance apparatus that would be unrecognizable to the people who ratified the Bill of Rights — and the Fourth Amendment has been quietly carved out of it.

Under Section 702 of the Foreign Intelligence Surveillance Act, the National Security Agency collects enormous volumes of email, text, and phone communications from foreign targets without a warrant.¹ That collection inevitably sweeps up the communications of Americans whenever they email, text, or call anyone abroad — for work, for family, for journalism, for organizing. The FBI then queries that database for information on Americans without ever going to a judge. In 2022 alone, the FBI conducted more than 200,000 warrantless searches of Section 702 data for information about U.S. persons.²

This is not foreign surveillance. It is domestic surveillance, conducted at scale, through a foreign-intelligence loophole, against Americans who have done nothing wrong.

I support requiring the government to obtain a warrant before searching Section 702 data for Americans’ communications. The Fourth Amendment does not have an exception for “but it would be inconvenient.”

The 2024 Vote That Tied 212–212

In April 2024, Congress reauthorized Section 702 through the Reforming Intelligence and Securing America Act (RISAA).³ During floor debate, a bipartisan coalition introduced an amendment that would have required the government to obtain a warrant before searching the Section 702 database for the communications of Americans. Eighty-four Democrats and one hundred twenty-eight Republicans voted in favor. The amendment lost on a tied 212–212 vote.⁴

Representative Jake Auchincloss voted against the warrant requirement.⁴ If he and one other Democrat had voted differently, Americans would have Fourth Amendment protections for their communications today.

He has never publicly explained that vote. He did not speak on the House floor during the debate. He did not issue a press release. There is no statement on his congressional website explaining why he opposed requiring a warrant for searches of Americans’ private communications.

What Congress Did Instead: Expand the Powers

Rather than constrain Section 702, Congress expanded it. Under pressure from the Biden administration, RISAA included a provision that broadens the definition of an “electronic communications service provider” to potentially compel a wide range of businesses with access to communications equipment — commercial landlords, IT contractors, custodial staff, and other ordinary businesses — to assist the NSA in surveillance.⁵

Senator Ron Wyden warned on the Senate floor that these powers would “inevitably be misused.”⁶ The Department of Justice promised to interpret the law narrowly. That promise was not binding on future administrations — and the administration that inherited those powers is the second Trump administration.

In 2025, the Trump administration gutted the Privacy and Civil Liberties Oversight Board, the independent watchdog Congress created after 9/11 to review surveillance programs.⁷ The administration also eliminated the FBI office responsible for auditing compliance with Section 702 query rules.⁸ The guardrails Congress claimed existed have been removed by the very people Congress was warned about. The surveillance authorities remain.

A Vote in 2026 — and the Same Silence

Section 702 is again before Congress. On April 30, 2026, the House voted 261–111 under suspension of the rules to extend warrantless Section 702 authority for an additional forty-five days, through June 12, 2026.⁹ Ninety-four House Democrats — Representative Auchincloss among them — joined 167 Republicans to extend the program rather than allow the deadline to force meaningful reform.⁹

Two votes, two years apart, on whether the government should be able to search Americans’ communications without a warrant. Two votes against the Fourth Amendment. Two votes with no public explanation.

According to The Intercept, some Democrats who voted against the 2024 warrant amendment have begun to reconsider their position after watching the Trump administration approach civil liberties.¹⁰ Representative Auchincloss has not indicated any such reconsideration. He has not said anything at all.

What I Will Do in Congress

I believe the government should need a warrant — issued by a judge, supported by probable cause — before reading Americans’ private communications. That principle does not change depending on which party controls the White House. The Fourth Amendment exists because no administration can be trusted with unchecked surveillance authority over its own citizens, and we do not get to learn that lesson only when the wrong person is in office.

When I am in Congress, I will:

Vote for a warrant requirement on Section 702 queries of Americans’ communications. No backdoor searches. No “incidental collection” loopholes used to read the emails of journalists, organizers, political campaigns, or anyone else.

Oppose any expansion of the “electronic communications service provider” definition that would conscript ordinary businesses into the surveillance apparatus. The 2024 RISAA expansion should be repealed.

Restore independent oversight. The Privacy and Civil Liberties Oversight Board must be rebuilt with full independence and full access. The FBI’s internal audit functions must be restored.

Require public disclosure of FISA Section 702 query volumes and compliance violations — not buried in classified annexes, but in public reports the press and the public can read.

Explain my votes. Civil liberties votes are not procedural footnotes. They deserve a floor speech, a statement, or at minimum a sentence. Constituents are owed a reason.

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