AI Amplifies Surveillance Risks as Congress Prepares to Renew Controversial FISA Authority
A federal surveillance power that has long allowed the government to spy on Americans faces renewal on April 20, but this time the stakes are higher because artificial intelligence can process collected data at scale with minimal human oversight.
Section 702 of the Foreign Intelligence Surveillance Act, enacted in 2008, gives law enforcement and intelligence agencies legal authority to collect communications to and from the U.S. or between American citizens and foreign nationals. Agents can then search this material without a warrant, on the theory that the searches target foreign intelligence threats.
In practice, the system has cast a wide net. The FBI conducts hundreds of thousands of searches annually under Section 702, and many target American citizens. Members of Congress, political donors, activists, and people using VPNs to protect their browsing have all been caught in these searches.
Congress last renewed Section 702 in spring 2024, adding a requirement that agents obtain a warrant when searching the material exclusively to gather evidence of a crime. That reform covers a small fraction of all searches.
How AI Changes the Calculus
Matthew Guariglia, a senior policy analyst at the Electronic Frontier Foundation, said the integration of AI into law enforcement queries fundamentally changes how 702 material gets used. Where a human analyst once had to manually review data, an AI system can now process it exponentially faster.
"A generation ago, somebody would have had to read and analyze this collected data," Guariglia said. "Now it's being read by a computer, and those computers are making decisions or supposedly finding patterns. But what we're seeing more and more is this becomes the judge, jury and executioner."
AI systems can introduce errors known as "hallucinations"-confident but false inferences drawn from data-without human review catching them. Other AI tools already used in law enforcement include facial recognition, image search, and automatic license plate readers.
The Trump Administration's National Security Agenda
The timing of the Section 702 renewal coincides with President Donald Trump's national security priorities, outlined in his seventh National Security Presidential Memorandum. That document targets anti-fascist movements, anti-Americanism, anti-capitalism, and anti-Christianity, classifying people who support these ideologies as domestic terrorists.
Patrick Eddington, a former CIA analyst and senior fellow at the Cato Institute, described a pathway by which an FBI agent could use AI queries and these broad national security priorities to build a justification for investigating nearly anyone.
An agent could open an "assessment"-the lowest level of investigation-under the NSPM-7 framework, which requires only an "authorized purpose" with no particular factual basis. Someone attending an immigration enforcement protest could trigger such an assessment.
From there, the agent could use AI to compile data from open sources and data brokers, building a dossier sufficient to open a preliminary investigation, which requires only showing that a federal crime "may be" occurring. A full investigation requires an "articulable factual basis," but a single tip-even an unreliable one-can satisfy that threshold.
Once that factual basis exists, the agent gains access to wiretaps and Section 702 queries against the target, who would still have no knowledge of the investigation.
Weakened Safeguards
The process is known as "predicate laundering," and safeguards designed to prevent it have historically worked reasonably well. Those guardrails are now compromised.
The Privacy and Civil Liberties Oversight Board, a bipartisan watchdog intended to guard privacy rights, has lacked a quorum since January 2025. The DOJ's Inspector General is a Trump appointee.
Eddington noted that the FBI's internal incentive structure accelerates this process. Agents are evaluated on the number of assessments they open, preliminary investigations they initiate, and confidential informants they recruit.
"There's a bureaucratic incentive in the FBI already to do this kind of stuff," Eddington said. "In an environment where you're fighting for a promotion, it's just a further incentive to agents to engage in this kind of activity."
Congressional Dynamics
Despite Trump's support for renewing Section 702-a reversal from his 2024 position-Eddington said Congress lacks sufficient broad support to pass renewal at the moment. A contingent of Republicans is insisting on passing the SAVE America Act, a voting restriction bill, before considering any other legislation.
"As long as that particular group of Republicans continues to insist on moving the SAVE Act before they even think about doing anything else, that's good news for those of us trying to ensure that there is a real debate," Eddington said.
The FBI, NSA, and DOJ did not respond to requests for comment.
Government officials making policy decisions on surveillance authority should understand how AI accelerates data processing without equivalent increases in human review or accountability. The renewal debate offers a window to establish guardrails before these systems become entrenched. See AI for Government and AI Learning Path for Policy Makers for resources on how AI systems operate and their policy implications.
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