Why It Matters

After the surveillance tool Congress relied on most heavily after Sept. 11 was automatically repealed in April, Congress is examining federal legislation governing search and seizure authority. This is laid out in a new Congressional Research Service (CRS) report published Sept. 17.

Certain surveillance authorities associated with FISA Section 702, which authorized programmatic surveillance of foreign intelligence traveling through domestic communications infrastructure, will remain in effect only through early 2027. This leaves the Trump administration and the 119th Congress with a narrowing window to act before those, too, expire.

At least one federal district court has held that querying Section 702 data using U.S.-person terms presumptively requires a warrant, a legal tension the report flags as unresolved.

The CRS report identifies selected federal laws Congress has previously enacted governing search and seizure authority and outlines considerations for Congress related to potential legislation in that realm.

The Big Picture

The report examines the Fourth Amendment, which requires that searches and seizures be reasonable, ordinarily meaning a warrant supported by probable cause, issued by a neutral magistrate, and particularly describing the place to be searched and the items to be seized, a standard designed to prohibit general searches.

Within those constitutional limits, Congress has the option to further restrict or explicitly authorize a variety of law enforcement activities by legislation.

The Wiretap Act, enacted as Title III of the Omnibus Crime Control and Safe Streets Act of 1968, prohibits real-time interception of wire, oral, and electronic communications except as authorized and sets detailed procedures for law enforcement access in criminal investigations.

The Foreign Intelligence Surveillance Act (FISA), enacted in 1978 following revelations of widespread privacy violations during the Watergate era, created a statutory framework for executive branch agencies to obtain court authorization for electronic surveillance, physical searches, and access to certain business records targeting foreign powers or their agents.

The Electronic Communications Privacy Act of 1986 (ECPA) amended the Wiretap Act to cover electronic communications and both generally prohibited access and provided procedures for law enforcement to access certain other communications records in prescribed circumstances.

The report also illustrates how courts can constrain statutory authority, noting that the Stored Communications Act broadly authorized disclosure of non-content information.

The Bottom Line

With remaining associated authorities set to lapse in early 2027, Congress faces a hard deadline to either reauthorize some form of programmatic surveillance, impose new constraints, or accept a further reduction in the executive branch's foreign intelligence collection capabilities.

Proposed legislation on immigration enforcement, border searches, and surveillance technology has been introduced in Congress.

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