Stop me if you’ve heard this one before. A surveillance program designed to spy on foreign terrorists gets quietly repurposed to snoop on American citizens, journalists, political donors, and sitting members of Congress — all without a warrant. Nobody gets in trouble. Nobody gets fired. And when the authorization comes up for renewal, Washington shrugs and signs the check again.
That’s been the story of Section 702 of FISA for years. But something just shifted. And for once, the shift is in the right direction.
The Odd Couple
Mike Lee — constitutional conservative, Fourth Amendment hawk, and the Senate’s most reliable voice against government overreach — just introduced a bill with Dick Durbin. Yes, that Dick Durbin. The Illinois Democrat who agrees with Lee on approximately nothing except, apparently, the idea that the federal government shouldn’t be reading your emails without asking a judge first.
When those two shake hands on legislation, it means the abuse has gotten so flagrant that the usual partisan theater can’t cover for it anymore. Lee called the documented abuses “a blatant disregard for individual liberties.” Durbin called warrantless searches of Americans’ communications “unacceptable.”
They’re both right. And the fact that it took this long for anyone to do something about it is its own scandal.
What Section 702 Actually Does
Here’s the version they don’t explain on cable news. Section 702 was built to let intelligence agencies spy on foreign targets — terrorists, hostile operatives, enemy governments. That part makes sense. Nobody’s arguing that the CIA shouldn’t be monitoring Al-Qaeda communications.
The problem is the “incidental collection” loophole. When a foreign target communicates with an American, that American’s private messages get scooped up too. And once they’re in the system, government agencies can search through them without a warrant. No probable cause. No judge. No Fourth Amendment.
That’s how journalists got surveilled. That’s how political commentators and campaign donors ended up in government databases. That’s how sitting members of Congress — elected officials — had their communications monitored by the very agencies they’re supposed to oversee.
And thanks to a separate loophole, intelligence agencies have been purchasing Americans’ private data — location history, communications metadata — from commercial data brokers, effectively buying their way around the Constitution like it’s a toll road with an E-ZPass lane.
What the SAFE Act Fixes
Lee and Durbin’s bill does four things that should have been done a decade ago.
First, it requires agencies to get a warrant before accessing the content of Americans’ communications collected under Section 702. Foreign targets remain fair game. But if you’re an American citizen, the government needs to show probable cause to a judge before reading your texts. There’s an exception for genuine emergencies, which is reasonable — nobody wants agents filling out paperwork while a bomb is ticking.
Second, it closes the data broker loophole. No more buying your way around the Fourth Amendment with a government credit card. If the intelligence community wants your location history, they can get a warrant like everyone else.
Third, it fixes the absurdly broad definition of “Electronic Communications Service Provider” that was expanded during the last reauthorization fight. Under the current definition, virtually any business, church, or nonprofit that uses email or voicemail can be forced into government data collection. Your local church could technically be compelled to hand over communications. The SAFE Act narrows that definition back to something sane.
Fourth, it closes a loophole from Section 215 — the expired surveillance authority that the government kept using anyway because apparently “expired” is a suggestion in Washington, not a rule.
The White House Problem
Here’s where it gets complicated. Reports indicate the White House wants a “clean” reauthorization of Section 702 — meaning renewed as-is, no reforms, no guardrails. That’s the intelligence community’s dream scenario and the Fourth Amendment’s nightmare.
But Attorney General Pam Bondi told Congress in a hearing that the administration is “committed to working with you” on ending warrantless surveillance of Americans. She said it directly to Rep. Andy Biggs after he quoted her own confirmation testimony back to her.
So which is it? A clean extension that preserves every abuse, or meaningful reform that protects citizens? The answer will tell you a lot about whether this administration’s commitment to civil liberties is genuine or performative.
The Speaker’s Headache
Speaker Mike Johnson is in a tight spot. Last time this came up, he sided with the Intelligence Committee and cast the deciding vote against requiring a warrant for Americans’ communications. That vote infuriated conservative members who see warrantless surveillance as a fundamental constitutional violation, not a procedural debate.
Jim Jordan and Rick Crawford are reportedly in talks about a compromise. Jordan’s framing was sensible: “We know 702 is important. We just want to do it in the best way possible so that you can get the bad guys but also protect Americans.”
That’s the right instinct. The question is whether the intelligence establishment will let it happen, or whether the usual backdoor lobbying will water the reforms down to nothing and send another clean extension to the floor.
Why This Matters Right Now
We just watched ten FBI agents get fired for secretly obtaining phone records of Kash Patel and Susie Wiles and burying the files in restricted folders. That wasn’t ancient history — that was Biden’s FBI using surveillance tools against political opponents and hiding the evidence.
If that doesn’t prove the need for warrant requirements and oversight reform, nothing will. The tools designed to catch terrorists were turned on American citizens for political purposes. The system wasn’t broken by accident. It was exploited by design.
Lee and Durbin’s bill won’t fix everything. But it draws a line that should have been drawn years ago — the government doesn’t get to read your private communications just because a foreign target once CC’d you on an email.
The Bottom Line
The SAFE Act is rare in Washington — a genuinely bipartisan bill addressing a genuinely bipartisan concern. Left-wing privacy groups support it. Conservative constitutional organizations support it. The Consumer Choice Center supports it. Demand Progress supports it. When the Heritage Foundation wing and the civil liberties wing are pulling in the same direction, the only people opposed are the ones who benefit from the status quo.
And the people who benefit from the status quo are the ones who’ve been abusing it.
The Fourth Amendment isn’t a suggestion. It isn’t a guideline. It’s a constitutional right that applies whether the president is a Republican or a Democrat, whether the target is a journalist or a congressman, and whether the agency doing the spying calls it “incidental” or not.
Lee and Durbin just put Washington on notice. The free ride on warrantless surveillance is over — if Congress has the spine to vote for it.
And given what we’ve learned about how these tools were used under Biden, “if” better turn into “when” real fast.