Cybersecurity Policy Report, Bipartisan Senate Bill Targets ‘Warrantless’ Surveillance, (Feb 24, 2026)
Bipartisan legislation introduced yesterday in the Senate would require federal authorities to obtain a probable-cause warrant before accessing Americans’ communications collected for foreign intelligence purposes.
The Security and Freedom Enhancement (SAFE) Act (S.B. 3893, 119th Cong. (2026)) would reauthorize section 702 of the Foreign Intelligence Surveillance Act (FISA), which expires in April, through April 20, 2028.
Section 702 empowers U.S. intelligence agencies to monitor the communications of foreigners who are overseas and considered national security threats. But Americans’ communications are often swept up in section 702 surveillance when they communicate with a foreign intelligence target, and those communications can be searched by federal authorities under certain circumstances without a warrant, which detractors describe as “warrantless” surveillance.
The SAFE Act, introduced by Sens. Mike Lee (R., Utah) and Dick Durbin (D., Ill.), ranking member of the Senate Judiciary Committee, would impose a “narrow” warrant requirement on the Federal Bureau of Investigation and other agencies with access to foreign intelligence collected under section 702, the senators noted in a news release.
Authorities who want to access section 702 content that “would require a probable cause warrant if sought for law enforcement purposes inside the United States” would have to obtain a warrant, according to the bill. But warrants wouldn’t be required for queries of section 702 data that don’t reveal the content of communications.
“Requiring a warrant only for accessing the content of communications when a U.S. person search has returned results would dramatically limit the number of cases in which the government must seek a warrant, ensuring that the requirement is workable in practice,” Sens. Lee and Durbin explained.
“This narrow warrant requirement is feasible to implement and sufficiently flexible to accommodate legitimate security needs,” they said.
Federal authorities under presidential administrations from both parties have opposed warrant requirements for section 702 searches, noting that the communications were already lawfully collected under FISA. Warrants, they say, take too long to obtain and are incompatible with intelligence work that relies on speed.
A warrant requirement was proposed but ultimately rejected the last time Congress reauthorized section 702 by passing the Reforming Intelligence and Securing America Act (RISAA) (CPR, April 22, 2024).
The Federal Bureau of Investigation’s record of misusing section 702 data to obtain information about Americans was cited by Sens. Lee and Durbin in support of a warrant requirement.
“The many documented abuses under FISA should provoke outrage from anyone who values the Fourth Amendment,” Sen. Lee said.
“From warrantless searches targeting journalists, political commentators, and campaign donors to monitoring sitting members of Congress, these infringements reveal a blatant disregard for individual liberties. Our bipartisan reforms to FISA Section 702 are common sense and imperative to restoring trust in our government’s commitment to the Constitution,” he said.
“Section 702 is a valuable tool to help keep our nation safe,” Sen. Durbin said. “However, it’s being used to conduct thousands of warrantless searches of Americans’ private communications. That’s unacceptable. Our bipartisan SAFE Act is a commonsense solution to continue protecting our country from foreign threats—while safeguarding Americans’ civil liberties and privacy.”
Sens. Kevin Cramer (R., N.D.) and Mazie Hirono (D., Hawaii) are co-sponsoring the 116-page bill, which would, among other things, restrict federal agencies’ use of data brokers to circumvent Americans’ privacy protections.
It would close the “‘data broker loophole’ that intelligence and law enforcement agencies use to buy their way around the Fourth Amendment and statutory privacy protections by purchasing Americans’ sensitive information, including location history, from commercial data brokers,” Sens. Lee and Durbin said.
It would also remove a provision of RISAA that broadened the definition of “electronic communications service provider” to empower authorities to demand data from previously exempt entities, including data centers and landlords and businesses that provide Wi-Fi or other communication services.
The Center for Democracy and Technology, which said it was speaking for a “broad set of civil liberties groups from across the political spectrum,” endorsed the bill.
“FISA 702 has been abused in shocking ways. The FBI has misused it to snoop on protesters, lawmakers, journalists, judges, and campaign donors,” Jake Laperruque, deputy director of CDT’s Security & Surveillance Project, said in a news release.
“If Congress genuinely cares about surveillance abuse, weaponization, and ‘lawfare,’ it needs to rein in this warrantless surveillance power. The SAFE Act includes bold FISA reforms, creates strong guardrails against surveillance misconduct, and has been meticulously crafted to protect national security,” Mr. Laperruque said.
“With less than 10 weeks until FISA 702 expires, Congress should take up reform legislation quickly,” he added. “Kicking the can on FISA would be a dereliction of duty.”
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