The NPR Politics Podcast - Efforts to renew key spy program keep failing in Congress

Episode Date: May 4, 2026

Congress has been unable to reach an agreement over the reauthorization of a surveillance program the intelligence community says is vital for spying on foreign nationals. We discuss what is so controversial about Section 702 of the Foreign Intelligence Surveillance Act and why concerns about it cross traditional partisan lines.This episode: political correspondent Ashley Lopez, congressional reporter Eric McDaniel, and justice correspondent Ryan Lucas.This podcast was produced by Casey Morell and Bria Suggs, and edited by Rachel Baye. Our executive producer is Muthoni Muturi.Listen to every episode of the NPR Politics Podcast sponsor-free, unlock access to bonus episodes with more from the NPR Politics team, and support public media when you sign up for The NPR Politics Podcast+ at plus.npr.org/politics.See pcm.adswizz.com for information about our collection and use of personal data for sponsorship and to manage your podcast sponsorship preferences.NPR Privacy Policy

Hey there, it's the NPR Politics podcast. I'm Ashley Lopez at Cover Politics. I'm Eric McDaniel. I cover Congress. And I'm Ryan Lucas. I cover the Justice Department. And today feel special because Eric, you're back. It's been a while since you've been on the pod. It's very nice to have you. I'm glad to be back. Today on the show, Congress has tried and failed and tried and failed to renew a key spy tool program. That's because some lawmakers worry that it is used by the FBI to review Americans' private calls, texts and emails without a warrant. Before we get into this, I want to have you both explain, though, what is this program and what is it supposed to be used for? All right. I can kick this off. So we're talking about Section 702 of the Foreign Intelligence Surveillance Act. And what it does is it allows the government to collect for foreign intelligence purposes, the emails, text messages, phone calls of foreigners overseas, even when they're talking to Americans. And they can do all of this, as you mentioned at the top, without a warrant. So it's a key tool people in. National Security circles say, people in the intelligence community say it allows the government to learn a lot about what foreign adversaries are doing, what hackers are doing, what cartels are doing, Russia, Iran, China, North Korea.

And they say that this is really a critical tool. And without it, former Attorney General Merrick Garland said at one point when he was testifying in a previous iteration of this, that if the U.S. were not to have 702 anymore, it would be like intentionally blinding ourselves. That's kind of how he put it. It is hard to overstate the scale of this. In recent years, it's been something like 350,000 intelligence targets annually. And that's not just the communications they're pulling in. That's the number of people, group, et cetera, they're pulling in. So this goes into a giant database of information that the intelligence community and that federal law enforcement, i.e. the FBI, can look into.

And the controversial part is that sometimes people located abroad talk to U.S. citizens located abroad or Americans or others located inside of the United States. And that's where a lot of this controversy comes from. Yeah. Well, it sounds like, Ryan, this has been around for a while. So I wonder if we do have some examples in history of how this has been used in the past and what we can draw from like how the government has used this program. So there are examples, but it also has to be said that traditionally the government

doesn't want to talk too much about exactly how this is used. one example that they gave a couple years ago when they were trying to get this renewed was saying that information that would have been gleaned from Section 702 was used in finding and tracking down the leader of Al Qaeda, I mean also Walker, who was eventually killed. But there are some hypotheticals that might kind of make it more understandable as to how this is used and how it's useful. And one example would be somebody's picked up in Syria in Iraq as a low level. operative of the Islamic State. That individual has a phone on them. The U.S. will get the list of numbers that are in that phone, and they can throw every single one of those numbers into the 702 database and see who that person was in touch with.

If they're in touch with somebody in the U.S., then the FBI would check that person's files, maybe go find out who that person is. But that's how it can be used to kind of you get information someplace else, and then you run it through the database to see if there's a reason to follow up or if there's information that would make it useful here. That's how the FBI, for example, might use it. It also can be used for cyber attack. So, for example, say that a European ally picks up a hacker and has the hacker's computer. They find out that that hacker has a thousand IP addresses that they were planning on targeting. The U.S. government can run all of those IP addresses through

the 702 database, see if any of them actually were targeted, and then follow up with the people who were targeted to let them know that they have potentially been breached by a hacker. That's another hypothetical example of how this tool could be used. I mean, given how useful FISA sounds to be, I mean, I wonder what the controversy is on the Hill, Eric. Like, what are members of Congress worried about here? Yeah. And it's sort of a fun one to cover because it's not just Republicans concerned or Democrats concerned. It cuts across the parties in a really interesting way. And the issue, like we mentioned before, is sometimes these people who are targeted,

talk to or mention Americans located around the world or foreigners located inside the U.S. or some combination thereof. And right now, if the FBI wants to conduct a targeted search for an American's information, meaning they're not just looking at a foreigner's communications and they see the American's emails as part of that. But if they want to search for an American's information specifically, they do have to jump through some pretty stringent administrative hurdles, but they don't have to show any probable cause of wrongdoing or suspected criminal behavior to a judge like they would to otherwise

search through an American thing. This is tied up in the Fourth Amendment to the Constitution and the right to privacy. So lawmakers, privacy hawks on the left and right, as well as some Democrats generally who don't trust administrative oversight under the Trump administration specifically want to add that warrant requirement. And this comes up every time this law is up for renewal, which last happened two or three years ago. And now it's back. I know Ryan said, like, there's a lot of reasons why we don't know a lot about how this is used. And I assume this is going to be a harder question to answer. But I do wonder if we have examples of abuses yet.

Like, do we know how this has been misused? We do. And the way we know this is there are semi-annual transparency reports that come out from one of these oversight bodies. The spy court that authorizes this program as a whole every year, not targeted searches or specific, but gives the full authorization. from the program, their findings get declassified after a couple years, and they can have information on how this program has been used. But first, it used to be that millions of these searches were reported every year looking for Americans' information. But after the last round of reforms, those have dropped dramatically. In recent years, we've seen something like 5,000 or 7,500 searches

for Americans, which is a big drop. So there are past reforms to this that seem to have curbed the amount that the FBI is using it. But the abuses that have been documented are things like intelligence analysts searching for their Tinder matches or an FBI agent searching for a family member who may be having an affair. There have been searches for Black Lives Matter, protesters information, for politicians. The FBI says that kind of gives a poor example of most of the kind of searches they do, but these abuses are real and they have been documented and acknowledged by the department. And this is from speaking to a source who worked in the IC.

A lot of these broad problems have been fixed. Part of it was, as I understand it, they were running batch searches, basically, where they'd throw in a bunch of IP addresses and the way that it was kind of calculated, even if there was one U.S. person in that batch of 1,000, it was calculated as 1,000 U.S. person searches. there were some kind of simple technological issues that could be fixed, and I think from what it sounds like have been to a degree. And on the civil liberties advocate size, like outside privacy advocates who watch this, who are suspicious of the intelligence community and federal law enforcement, they'll say, you know, we can't trust all these numbers. They've said the FBI and the Department of Justice have acknowledged that not all of these searches have been counted because of how their search tool is set up, that, you know, maybe they're not getting a full picture, that Trump. has remade some of the Civil Liberties Oversight Board stuff that happens and helps to oversee this.

He's obviously, as you've covered on this podcast, many times, gone after inspectors generals and all of these things. So part of this and this comes up in Congress all the time is like how much do you trust the information you're getting? Well, Eric, I mean, I thought the government in order to conduct any search needed a warrant. Like, why is it different in this case? I mean, you've just articulated exactly what privacy advocates and members of Congress who are in favor of adding this warrant requirement to FISA say that the Fourth Amendment to the Constitution protects against illegal searches and seizures. Generally, you need to show probable cause to a judge before you look through the information

of an American or anyone else in the United States and that this program is a narrow slice of, you know, federal law that doesn't require that. And that needs to be fixed. And this question of potentially requiring a warrant to search a suburb. 702 databases is one of the key sticking points in the political battle. From the FBI slash intelligence community perspective, there are a couple of arguments to push back on the idea of requiring a warrant. One is a legal argument, which basically is that courts have already approved the collection of this information. They shouldn't have to go get court approval again to look at the information that they've already legally collected. And then the second one is kind of an operational aspect, which is, is the way that they use information collected by 702 is it's so early in an investigation that they often don't have enough information to establish probable cause. Therefore, if you require a warrant, 702 becomes worthless from the FBI perspective in

particular. I can give a very quick example of how that might work, which would be say that the government gets a number off of a suspected terrorist phone. It has a U.S. area code in it in order to plug that number into the 702 database. they would then have to go get a warrant from a court. They would have to show probable cause. And they just don't have enough information at that point to do so. That's their argument.

So what do you mean by courts have already approved of these searches? As in federal courts have signed off essentially on the program writ large, which approves the collection of this material. All right. Well, we're going to take a quick break more in a moment. Welcome back. Eric, what is the current state of negotiations on the first? the hill over renewing this law. It is a total mess. So this law was supposed to expire on April 20th. They couldn't get a deal. There was a dramatic late night vote that failed despite, you know, this

ostensibly being a Republican president, Republican House, Republican Senate. Failed in the House overnight. Then it was supposed to expire on April 30th. That was last Thursday. They couldn't get a deal again. Now they have until sometime in June to figure something out. They passed a 45-day stopgap that just continues the program as is without modification. I talked to Representative Jamie Raskin of Maryland. He's a Democrat, former constitutional law professor. He told me at some point during this mess that, you know, all of the reform talks are centered on one thing, which is the Warren ask. That's true of Republican privacy hawks, Democratic privacy hawks. Senator Ron Wyden, Democrat of Oregon, has been on this train for a long time. And at some point,

I think this is the issue that Speaker Mike Johnson is going to have to engage with in order to move this thing forward. I mean, speaking of Mike Johnson, I mean, I do wonder how party leaders, like what their influence is in all of this. What do we know about how both President Trump and Mike Johnson are influencing this debate? Well, right now, President Trump says he doesn't want a warrant requirement. He wants a so-called clean extension of FISA. He explains it and has done this a couple times as being willing to give up his rights for the sake of the military. useful this is in military campaigns. Speaker Mike Johnson has been following his lead. But like we've talked about, there are enough Republicans in the House who want reforms that he needs to wheel and

deal. It looked like they'd made progress, adding criminal penalties for intentional abuse of the tool, a ban on kind of an unrelated financial surveillance issue. But when the House sent that to the Senate, the Senate just said, nope, and sent it back less than a day later. So now they're back to square one. excruciating votes in the House where Mike Johnson has just a one or two vote margin depending on absences and illnesses. And they'll have to, you know, they've got about six weeks to figure out a path forward. One of the most fascinating things to me watching the renewal fight this year as much as we can call it that is thinking back to the last time that this was up for renewal. You had administration officials top. You had the director of national intelligence at the time. Averill Haynes. You had CIA director, Bill Burns. You had the attorney general. All of these people made. making very public statements and pleased to Congress telling them how important this this tool is in what they do, how critical it is, and imploring them to find a path forward to keep it intact so that they continue to be able to use it and don't, as I said earlier, how they phrase it so that the U.S. doesn't go blind. And we just don't have any of that this time. There is no big push from acting attorney general Todd Blanche from now former Attorney General Pam Bondi.

we've heard almost nothing from Tulsi Gabbard, the director of national intelligence. It is a stark difference compared to a couple of years ago in a large part, and I'd be curious for your thoughts on this, Eric, is this is the Trump administration and these are people who have criticized the agencies that they now lead. Yeah, to Ryan's point, President Trump repeatedly alleges that FISA as a whole, it has more provisions than just this foreign communications collection. provision has been used to spy on him. We're not going to relitigate all of that here. But when Biden was in office, Trump posted online kill FISA. And so lots of his Republican allies have a natural built-in skepticism to this that now when the president is saying, I want a clean extension, it's kind of a hard sell. Would you say like that is the main reason this process has been so different compared to the last time this was before Congress? I would say it's always kind of messy. But like the thing. that has it cross political lines and this is sort of a Trump era phenomenon is there's a lot of mistrust in the federal government from both parties, right? Republicans have been known for a long

time. Like small federal government, we should be conscious about the powers that were granting all of these things. But Democrats who previously have been willing to acknowledge, okay, the world's a dangerous place. We need to give this tool some leeway in order to prevent like the intelligence communication failures that happened during the 9-11 moment, now those Democrats are now broadly not trusting the Trump administration to use surveillance powers responsibly. And so, you know, there's a lot of this that kind of makes it an ink block test about how you're willing to trust the government right now and what tradeoffs you're willing to make for, you know, a hypothetical promise of security. The unraveling of trust on both sides is kind of a common threat here.

and it's a big problem, and it's hard to build that back once it's gone. One thing that I will say from talking to people in this world, thinking about Democrats and their concerns about the current Trump administration, potentially abusing 702 to go after domestic political opponents, there's a thought that this is not the most efficient tool to surveil your domestic political opponents. If you want to do that, you can just, you know, do it a warrantless wiretap without jumping through all the 702 hoops. So while there may be a concern that some people view as legitimate of the Trump administration potentially abusing its surveillance powers, the thinking is that 702 is not the way that they would necessarily do that. And from the national security folks, at least, a feeling that they really want to see this get across the line. And the top Democrat on the House Intelligence Committee, Jim Himes of Connecticut, made a really similar point in the debate over this legislature. He voted for the deal that the House passed and the Senate rejected because he thinks 702 is too important to hamstring in this kind of like protracted, very detailed, weedy reform debate, although he has repeatedly expressed skepticism that Trump could abuse this authority, although he says he hasn't seen that happen yet. I am curious about timing, Eric.

there's been a couple of like very short stopgap measures. How likely is it that that's what we're likely to get in this next round of negotiations? Or are you seeing it likely that they could reach something and get something like a three year approval on the books? Yeah, I have no idea. And one of the things that has made this so frustrating to report on is no one else does either. Like, I can go to Hill staff. I can go to lawmakers and it's like, where are we on this? And the reality is they're negotiating at live oftentimes when the vote is actually open on the floor. You'll see Speaker Johnson shuttle from group to group to group to group trying to figure out a path forward on how to get this across the line with no support. So I think Democrats are optimistic that Mike Johnson will come to them and say, you know, I'm might not support a warrant requirement, but what tradeoffs could we make? One thing we've seen Democrat Ted Liu advocate for is Cash Patel to leave as FBI director before they advance another FISA program. So I imagine we'll see some kinds of reforms to the program, maybe a warrant, given how sort of absent the top levels of the intelligence community have been in advocating for this on the Hill. But I really don't think anyone knows. And they've got 45 days. to figure it out. And in practice, they'll probably try and figure it out in the last five days.

Traditionally, when push has come to shove on the FISA issue, and it's kind of a, in the past, it's been a push and pull between the Judiciary Committee and the Intelligence Committee's. The intelligence committees have won out. We will see whether that continues to be the case this time. That makes me wonder for a couple reasons, besides the fact that there is bipartisan resistance to some parts of FISA. I mean, if Congress does pass something, let's say three years, what is the likelihood that, you know, in three years, everything will be back in the same spot and the concerns will be the same unless there's, I guess, some of those reforms in there? 100%. Like, this has been controversial since 2007, 2008 when it first came about. It's only gotten more controversial with time. The issue of warrantless surveillance isn't going to get less controversial for the American public. And I think, you know, maybe the only reason you haven't seen it suck up more of the oxygen is there. There's just so much going on in Washington with the cost of living, with the war in Iran. FISA feels a little more abstract of like should we give up these liberties and how is this tool being used. An ongoing theme.

All right. Let's leave it there for today. I'm Ashley Lopez. I cover politics. I'm Eric McDaniel. I cover Congress. I'm Ryan Lucas. I cover the Justice Department. And thank you for listening to the NPR Politics Podcast.