Now is an opportune moment to reach a legislative compromise on domestic mass surveillance. Last week, the Supreme Court closed off one of the government’s warrantless surveillance tools, but a significant loophole remains. Simultaneously, a law authorizing the bulk surveillance of foreigners and incidental collection of Americans’ data has expired, and lawmakers are deadlocked over how to revive it. That deadlock gives the Trump administration an opportunity to broker a deal: reauthorize a genuinely valuable foreign-intelligence tool, add protections for Americans’ privacy, and reduce internal agency bureaucracy that weakens our foreign intelligence capacity.
Loophole: Purchase
Last Monday, the Supreme Court held in Chatrie v. United States that the government needs a warrant to compel Google to turn over your location history. The government had argued that when you share your data with a company, you give up your privacy. A cross-ideology 6-3 majority of the Court disagreed. Writing for the majority, Justice Kagan noted that “users are specifically warned that their devices will not ‘work correctly’ unless they turn on Location History.” The court found that location history is not disclosed by users in a way that is meaningfully “voluntary,” and the government must therefore obtain a warrant to compel companies to share it. The Chatrie ruling extended Carpenter v. United States, a 2018 ruling which held that a different type of location data is similarly warrant-protected.
The court’s holding in Chatrie is a welcome development, but it addresses only one mechanism of surveillance. While it made clear that the government needs a warrant to compel a company’s handover of your location data, it says nothing about the government buying the same data (the "data broker loophole"). No court has ever actually ruled on whether this purchase approach is legal. But government agencies tell their employees they can purchase Americans’ location data without a warrant. We should not wait for courts to rule otherwise. Congress can end warrantless search-by-purchase through legislation, and now is an opportune time to do so given a fight playing out over a separate surveillance mechanism.
Loophole: Backdoor Search
Section 702 of FISA lets the government demand certain foreigners' emails, texts, calls, and more from U.S. providers like Google, Apple, and Verizon. The government does not get a warrant for each target; instead, the Foreign Intelligence Surveillance Court (FISC) approves the general rules once a year—broadly, that a target must be a non-American abroad, sought for foreign intelligence—and the agencies pick specific targets under those rules. When those foreigners are in contact with Americans, their communications are collected as well. This “incidental collection” is one source of longstanding controversy around Section 702. Although the targets of FISA surveillance are foreigners, once Americans’ communications end up in the database, the FBI can search them, too—a “backdoor search.” This is a separate surveillance mechanism from the data broker loophole, but similar reforms are needed: require a warrant to search for Americans’ data.
The Stalemate
A number of Democrats and Republicans have called for warrant requirements on both FISA backdoor searches and purchases from data brokers. The Trump administration has been pushing for a clean reauthorization with no reforms. This has brought us to an impasse. When Congress created Section 702 in 2008, it set a sunset date; every few years since then, FISA has come up for reauthorization. The last renewal, in 2024, reauthorized FISA until April of 2026. When Congress failed to reach an agreement in April, it passed two short-term extensions to buy time. When the second extension ran out on June 12, Section 702 lapsed for the first time since 2008.
The administration’s hardline position is likely motivated by a push from the FBI, more so than the rest of the Intelligence Community. Reforms such as a warrant requirement for backdoor searches would barely hinder foreign-intelligence-focused agencies like the CIA or various military intelligence agencies, as it would only restrict searches targeted at Americans. The Bureau, on the other hand, frequently searches the FISA database for information on U.S. citizens.
While the administration’s refusal to support warrant requirements for backdoor searches may please the FBI, it inflicts a real cost on America’s foreign intelligence operations. While the expiration of Section 702 does not end foreign surveillance altogether—the FISC already approved a certification that lasts through March 2027—it does mean the government cannot target new foreigners. That is a serious impediment to our foreign intelligence capabilities. FISA has been a powerful tool, with Senator Chuck Grassley noting that “Section 702 has enabled more than 90% of CIA-driven synthetic drug disruptions abroad and prevented a mass casualty terrorist attack at a Taylor Swift concert overseas.” It is dangerous to hold hostage the foreign-facing benefits of FISA over the FBI’s insistence on warrantless surveillance of U.S. citizens.
President Trump is uniquely well-positioned to end this standoff. He previously called on Congress to “kill” FISA, given its history of being used against Americans, including himself. Now that he is back in office, he may be hearing from his Department of Justice about the importance of FISA and their opposition to a warrant requirement. Trump would not be the first president to defer to DOJ advisors once in office; presidents of both parties have opposed a warrant requirement once it is their FBI that would be restricted. But Trump is better placed than any of those predecessors to break the pattern rather than extend it, as a former target of FISA surveillance rather than merely an heir to its powers. And the agencies making the case against reform are his to direct. Trump can tell his FBI that while he understands their opposition to warrant requirements, it is not worth endangering foreign intelligence by stalling FISA reauthorization. Instead, the president can strike a deal that protects Americans’ privacy while sweetening the deal for agencies by cutting other red tape.
The Deal
The pieces of a bargain are already on the table. The two most salient privacy reforms being proposed are closing the data broker loophole and requiring warrants to search the FISA database for American’s information. Both of these are well-established, bipartisan proposals. The House already passed a bill to close the data broker loophole in 2024, but it stalled in the Senate. That same year, the House came within one vote of requiring a warrant for FISA backdoor searches, with the proposal failing on a 212–212 tie. Congress should finish the job and enact these protections of Americans’ privacy into law, while also sweetening the deal for the FBI and the rest of the Intelligence Community. There are legitimate fears that warrant requirements would layer on top of an already vetocratic culture within these agencies, fomenting such risk aversion that the government would become ineffective at intelligence-gathering and law enforcement. The government would benefit from cutting internal red tape that genuinely slows down legitimate surveillance and from certainty that the program won't lurch from one short-term extension to the next.
Holding out for a “clean” reauthorization delivers none of that; it just resets the same fight for the next deadline. The administration faces a choice. It can keep fighting for a longer-term reauthorization with no reforms, lose, accept another short-term patch, and fight this battle again soon—the betting markets do not expect the next reauthorization to last for more than a year—as every administration before it has done. Or it can support a multi-year reauthorization that reduces the bureaucracy internal to these agencies, choosing warrant requirements gated by courts instead of agency self-policing.
