The Trump administration missed a September 13 statutory deadline to declassify a Foreign Intelligence Surveillance Court opinion that found serious problems with how U.S. intelligence agencies filter queries for information on people who've communicated with foreign intelligence targets, according to an analysis published September 24 by The American Prospect. The March opinion involves Section 702 of the Foreign Intelligence Surveillance Act, which allows agencies to collect communications of foreign nationals abroad but bars spying on American citizens. Yet the program has let agencies like the FBI and NSA gather massive stores of Americans' communications data without needing a warrant to access it.
FISC opinions containing significant legal interpretations must undergo declassification review and be made public within 180 days, a responsibility that falls to the Office of the Director of National Intelligence and the Justice Department's Office of the Attorney General. Despite ignoring that deadline, DNI has warned Congress that Section 702 will "go dark" if they don't pass a clean reauthorization by November 20. But the FISC certification actually runs until March of next year, meaning DNI is pushing lawmakers to renew the program using a false looming deadline while hiding potentially damning information about constitutional violations from Congress and the public. U.S. law does permit the government to waive the declassification requirement to protect national security, classified sources, or intelligence-gathering methods, but it still requires the attorney general to issue a public statement summarizing the significant legal interpretation in the opinion. Neither agency disclosed whether they've invoked this waiver, and no such statement has been released.
"The administration's failure to follow the law on disclosing what is reportedly quite a damning FISA court opinion is just further evidence of why the internal self-policing reforms that have been put forward by surveillance hawks in Congress are not sufficient," Elizabeth Goitein, senior director of liberty and national security at the Brennan Center for Justice, said. At his July confirmation hearing, Attorney General Todd Blanche testified that DNI and Justice had been "working diligently with the intelligence community" to declassify the opinion and said they "anticipate being able to make the public release in advance of the statutory deadline." That came after the Senate Permanent Select Committee on Intelligence conveyed its expectation that the administration would expedite declassification and release the opinion by mid-May. Donald Bell, policy counsel at the Project on Government Oversight, told the Prospect that "the administration ignoring the demand from the Senate Intelligence Committee leadership months ago, and now the law to release the FISA court decision, tells us everything we need to know about how out of control things have become."
Privacy advocates say the administration is using the same scare tactics deployed many times before to create a false sense of urgency around Section 702. The real deadline for congressional action is roughly March 17, 2027, because the government must file an application before that date to avoid an actual lapse, and filing an application automatically extends existing certifications until FISC rules on it. The November 20 deadline is manufactured because the government submits a draft application 30 days before its final application, and FISC has 30 days to render a decision, creating 60 days between initial filing and when FISC must rule. At a recent Senate Judiciary Committee hearing, FBI Director Kash Patel said "what the FBI does not do is collect on U.S. citizens," but privacy advocates note that as soon as the government gets the data, it searches through it for Americans' communications. A 2023 Privacy and Civil Liberties Oversight Board report found relatively little national security value to warrantless backdoor searches involving U.S. persons, and even members of Congress have been subject to these searches.
Privacy advocates have urged lawmakers not to take the bait and instead establish safeguards to protect Americans from unchecked government surveillance. If Congress does need more time, nothing stops them from temporarily extending existing certifications for a brief period, though passing a short-term extension without reforms would allow the government to obtain new yearlong certifications, making it the functional equivalent of a clean one-year reauthorization. Bell said that "everything we've seen this year illustrates why there needs to be real guardrails, and importantly, penalties, in this space." Congress can't give this or any future administration a blank check for warrantless surveillance.