Cybersecurity Policy Report, Defense Bill Amendment Takes Aim at ‘Warrantless’ Surveillance, (Aug 5, 2025)
Authorities would have to obtain a probable-cause warrant before searching for information about Americans in data collected about foreign threats under legislation offered as an amendment to the Senate’s National Defense Authorization Act (NDAA).
The amendment appears to be an effort by its sponsors, Sens. Dick Durbin (D., Ill.) and Mike Lee (R., Utah), to enact surveillance reforms that were rejected by Congress last year when it reauthorized section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 empowers U.S. intelligence agencies to monitor the communications of foreigners who are overseas and considered national security threats. In practice, however, it often results in Americans’ communications being swept up when an American communicates with a foreign intelligence target.
The use of section 702 data to investigate Americans is a controversial practice that critics describe as “warrantless” surveillance because warrants aren’t required to spy on foreign threat actors.
During debate over section 702’s reauthorization last year, Sen. Durbin offered legislation that would have required federal agencies with access to section 702 data to obtain a warrant before searching for data about Americans (CPR, March 14, 2024).
But Congress ultimately rejected the warrant requirement (CPR, April 22, 2024).
The amendment proposed by Sens. Durbin and Lee would bar authorities from searching the section 702 database for “communications content, or information the compelled disclosure of which would require a probable cause warrant if sought for law enforcement purposes inside the United States.”
It would create exceptions to the warrant requirement in certain emergency situations.
The amendment is among dozens offered by senators hoping to get legislation attached to the Senate version of the fiscal year 2026 NDAA (S 2296). When the Senate returns from its August recess on Sept. 2, the first item on its agenda is to begin debate on the NDAA.
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