Director of National Intelligence (DNI) Tulsi Gabbard is working diligently to declassify a controversial FISA Court opinion that would detail the court’s concerns with how the federal government conducts searches using Section 702 of FISA.
When Congress moved to temporarily reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), Senate Intelligence Committee Chairman Tom Cotton (R-AR) struck a deal with Sen. Ron Wyden (D-OR), also a member of the committee, to send a letter to Gabbard and the Justice Department to declassify a 702 court opinion.
The Brennan Center for Justice wrote that the Justice Department learned in August 2024 that the FBI had been using a “filtering tool” that allowed it to query Section 702 data under the radar. This meant that U.S. person queries were not counted, tracked, or audited as required by law. The Center said that the FBI did not record the reasons for these queries or obtain the required attorney/supervisory approvals. The Justice Department told the FISA Court that it deactivated this tool in early 2025.
Section 702 is a surveillance authority meant to be used to spy on foreign adversaries. However, Americans’ private communications incidentally get surveilled without a warrant — contrary to the Fourth Amendment protections against warrantless surveillance.
The New York Times and the Washington Post have reported how the FISA Court (FISC) issued an opinion in March that is still declassified and may reveal startling issues with how intelligence agencies conduct surveillance by skirting rules created by the Reforming Intelligence and Securing America Act (RISAA), the last long-term 702 reauthorization bill.
The FISA Court opinion reportedly states that the FBI may be using a similar tool that could skirt the rules around surveilling Americans.
The Brennan Center explained:
The opinion reportedly reveals that even though DOJ shut down the filtering tool the FBI used in 2024, the FBI has been using another, similar filtering tool to conduct queries without following the requirements of RISAA—this time, seemingly with DOJ’s blessing. And it’s not limited to the FBI: the NSA and CIA are reportedly using similar tools to search through Section 702 data for Americans’ communications.
That means the systemic violations of RISAA are ongoing. Moreover, it means that the reported numbers of U.S person queries conducted by the FBI, NSA, and CIA in 2025 are all incomplete. And it means that any abuses occurring through the use of these querying tools are likely going undetected and unreported. [Emphasis added]
The FISA Court opinion’s declassification could help inform Congress and the American public about how the key surveillance tool operates and how Congress could reform the law to better protect Americans’ privacy.
Section 702 of FISA will expire on June 12, and Congress has faced difficulties finding consensus on how to reauthorize the program.
“The classified FISC opinion has been made available to all members of Congress and relevant committee staff, and they have also received classified briefings. ODNI is working across the Intelligence Community and with the Department of Justice to expeditiously declassify the opinion, while ensuring the protection of sensitive sources and methods. We look forward to completing this and sharing it with the American people as soon as the declassification review is complete,” a DNI spokesperson told Breitbart News.
The Office of the Director of National Intelligence (ODNI) has coordinated closely with Congress to inform them and keep them apprised of the process and the status of the declassification review, an intel official told Breitbart News. The opinion that needs to be declassified is reportedly extensive and contains pages of sensitive intelligence. The statute provides the Intelligence Community with 180 days to conduct a classification review of FISC opinions, and the ODNI is moving forward as expediently and responsibly as possible to make sure sensitive national security equities are not put at risk.
As the Brennan Center explained, since the FBI did not count the 2024 queries used by “filtering” tool, the actual number of U.S. person queries for 2024 remains unknown.
“It’s crucial ODNI’s declassification process is meticulously conducted and coordinated with all relevant Intelligence Community agencies, due to the amount of sensitive intelligence information. I’m confident ODNI is moving forward as fast as possible while still protecting sources and methods,” Cotton told Breitbart News in a written statement.
“Congress cannot reauthorize Section 702 without an open, public debate about how this surveillance law affects the constitutional rights of Americans. That means declassifying a FISA Court opinion that describes serious abuses directly implicating Americans’ rights and that the administration is already legally required to declassify,” Wyden told Breitbart News in a written statement.
The Oregon Democrat continued, “Senate Intelligence Committee Chairman Cotton and Vice Chairman Warner issued a clear deadline for the Director of National Intelligence to declassify the opinion in order for it to inform the reauthorization debate. The fact the DNI won’t meet that deadline, or even acknowledge it, shows this administration’s utter contempt for Congress and its dedication to hiding the facts about surveillance from the American people.”