For years, the debate over government surveillance has followed the same familiar pattern.
Intelligence officials warn that national security tools are essential to stop foreign threats. Civil liberties advocates warn those same tools inevitably get turned inward against Americans. Congress promises reforms. Agencies promise safeguards. Then another report surfaces suggesting the surveillance system may be operating far beyond what the public was told.
Now, Director of National Intelligence Tulsi Gabbard is moving to declassify what could become one of the most politically explosive FISA Court opinions in years.
At the center of the controversy is Section 702 of the Foreign Intelligence Surveillance Act — a surveillance authority originally designed to monitor foreign adversaries overseas. In theory, Americans are not supposed to be the target. In practice, however, Americans’ communications are frequently swept up “incidentally” during surveillance operations, creating years of legal and constitutional concerns surrounding warrantless searches.
According to reporting from The New York Times and The Washington Post, the still-classified FISA Court opinion may reveal that intelligence agencies have continued using internal tools capable of bypassing restrictions Congress specifically created during the last reauthorization fight.
And the allegations are serious.
The Brennan Center for Justice previously reported that the FBI used a “filtering tool” in 2024 that allowed agents to conduct Section 702 queries involving Americans without properly counting, tracking, or auditing those searches as required by law. The Department of Justice later acknowledged the tool existed and reportedly shut it down earlier this year.
But according to the new FISA Court opinion, the problem may not have ended there.
The Brennan Center says the FBI may now be using another similar tool — this time allegedly with DOJ approval — that again allows searches of Americans’ communications outside the safeguards imposed under the Reforming Intelligence and Securing America Act, better known as RISAA.
Even more alarming, the reported practice may extend beyond the FBI.
The opinion reportedly suggests the NSA and CIA are also using comparable systems to search Section 702 databases involving Americans’ communications without those searches being fully counted or disclosed. If true, that means official reporting on how often agencies search Americans’ data could be incomplete across multiple intelligence agencies.
In other words, Congress may not actually know the full scale of domestic queries being conducted under a program repeatedly sold to the public as foreign surveillance.
That possibility is fueling pressure on Gabbard and the intelligence community to release the opinion before Section 702 expires again on June 12. Congress is already divided over how to handle reauthorization, with civil libertarians and national security hawks once again colliding over whether reforms have gone far enough.
Oddly enough, the push for declassification has united two senators who rarely align politically: Republican Sen. Tom Cotton and Democratic Sen. Ron Wyden.
Cotton emphasized the need to carefully protect classified intelligence sources and methods during the review process, while Wyden accused the administration of dragging its feet to avoid public scrutiny.
“Congress cannot reauthorize Section 702 without an open, public debate about how this surveillance law affects the constitutional rights of Americans,” Wyden argued.
And that really is the core issue now hanging over Washington.
