The US federal government is violating the law by keeping secret a March 17 ruling of the FISA Court regarding Section 702 surveillance, say two US senators.
The ruling accusation is about analysts reading Americans’ messages without a warrant. And that is something the public has a right to know about, say Democrats Ron Wyden and Adam Schiff.
The administration is keeping this information secret while at the same time asking Congress to renew the program.
The legal deadline to release the ruling was 180 days after it was issued, which was on September 13. The senators said that the opinion contains information about “serious abuses of Americans’ rights.”
The FISA Court found that the search filters used by the government to sift through intercepted data were not in line with the law, as they allowed analysts to access Americans’ messages without the necessary approvals, justifications, or records, according to a WIRED report.
The system in question was supposed to filter out US persons’ information, but instead it let analysts pull those communications out of the vast amounts of data collected under Section 702, which targets foreigners but inevitably also sweeps in Americans.
The court found that the tools the government uses to narrow down the data to Americans’ messages constitute a search of US persons, and ordered that the tools be rebuilt, the New York Times reported in April.
The Brennan Center for Justice, a non-profit, has now said that the ruling shows that problems that the Department of Justice (DOJ) said had been fixed as far back as early 2025 were still ongoing – and not only at the FBI, but across the entire intelligence community.
This is because the “self-policing” of the FBI and DOJ is not working, the center said.
In the past, the FBI used a tool to sift through the huge amounts of data collected under Section 702, and pull out communications of US persons, using what is known as a “participants filter” – which allowed agents to read messages of people in contact with the original foreign target, and do all this without a warrant.
This was first reported in 2025, when the Department of Justice told the FISA Court that the FBI had been running searches that were not logged. The FBI then turned off the tool, but switched it back on later that year.
FBI Director Kash Patel closed the Office of Internal Auditing last May. And the Privacy and Civil Liberties Oversight Board (PCLOB), the government’s own privacy watchdog, said that searches using the participants filter are “not possible to track.”
Wyden and Schiff have now sent a letter to Director of National Intelligence Jay Clayton and Attorney General Todd Blanche, to inform them that the deadline to release the FISA Court ruling has passed, and to demand that it be published as soon as possible.
We obtained a copy of the letter for you here.
They also want to know who is responsible for the delay, and want that information by November 6.
“As Congress continues to debate the fate of this authority, lawmakers must be able to discuss these abuses openly,” the two senators wrote. “Otherwise, the American people will rightly question whether a government that so flagrantly violates basic legal requirements, like the statute requiring declassification, can ever be trusted to not abuse a powerful surveillance tool like Section 702.”
“If this administration won’t follow this simple statutory directive,” the letter reads, “it is unclear why Congress or the American people should trust this administration to follow any of the other legal limits to Section 702.”
In April, the Intelligence Committee’s chair, Tom Cotton, and vice chair, Mark Warner, said the document would be out within 15 days. That deadline was May 15.
When it passed, Wyden said, “It’s clear that this administration cannot be trusted with unfettered, warrantless surveillance of Americans.”
In July, Blanche was asked in writing if the administration would meet the 180-day deadline, and he replied, “Yes.” But all that Clayton would say was that the government was “working arduously to expeditiously declassify” the opinion.
Sen. Dick Durbin, who has read the opinion, said, “your opinion of the role of FISA and the rights of Americans will be impacted for sure.”
Meanwhile, a coalition of 23 civil liberties groups, from the ACLU to the conservative-backed Project for Privacy and Surveillance Accountability, has written to congressional leaders to say that the program should not be reauthorized while the administration withholds information about it.
“Congress should refuse to support any reauthorization of Section 702 while the administration actively withholds legally mandated information about how the surveillance program operates,” the letter said.
Earlier, Reclaim The Net reported that the Section 702 program had in fact expired on June 12, after the House voted down a three-week extension 218 to 198, but the FISA Court’s March order keeps collection running into 2027.
At the time, Wyden said, “Every day that Section 702 is in effect without reforms is a day that Americans’ rights are under threat.”
The push to renew the program, which opponents say is abused by the FBI and other agencies, is on, with the intelligence community saying it needs to happen by the end of the year, and some advocates fearing it will be attached to the annual defense bill, which is usually finalized in December.
The administration is asking Congress to renew the program without disclosing the FISA Court ruling. The vote would essentially be held with the evidence locked in a secure room.
The agency that will not obey a simple deadline to publish a court opinion is the same one asking to be trusted with Americans’ most sensitive information on the basis of its internal rules and record-keeping, and that after it shut down its own internal auditors. That is the case for introducing a warrant requirement, and not renewing the program without it.
