World
Inside a Sealed FISA Order, a Demand the FBI Can't Prove It Met
The surveillance court found FBI and NSA filtering tools deficient in a March ruling it immediately sealed. The Trump administration ignored the bipartisan May 15 deadline to release it, and also runs the agencies the opinion implicates.
The Foreign Intelligence Surveillance Court recertified Section 702 on March 17, then required the FBI and NSA to rebuild tools they use to query Americans' communications.
The full opinion stays classified. The New York Times reported its existence on April 9. The FISC judge had objected to "filtering tools" agencies built to process Americans' message data and ordered their re-engineering across the intelligence community.
The filtering tools sit at the center of a long-running legal dispute. Section 702 authorizes surveillance of foreign targets, but the database those operations fill contains American communications swept up in the process. Agents use the filter tools to search that database for Americans without a warrant.
The scale of those searches is rising. The FBI queried Americans' data more than 7,000 times in 2025, up 34% from the prior year, according to a declassified ODNI report. Kash Patel, who now runs the FBI, told the Senate at his confirmation he opposed a statutory warrant requirement for precisely those searches.
Chief Judge Boasberg ordered the DOJ on March 18 to produce Section 702 noncompliance records the Cato Institute has sought since 2023. The FBI finished its review by March 23, held the records three weeks, and delivered 14 heavily redacted pages on April 13, three days past Boasberg's deadline. Another 14 remain withheld on national security grounds.
After the House passed a 45-day Section 702 extension on April 30, 261-111, Senator Ron Wyden secured a deal. Intelligence Committee Chairman Tom Cotton and Vice Chairman Mark Warner committed in writing to declassify the March 17 FISC opinion within 15 days.
May 15 passed without action. Wyden issued a new demand on May 19, saying the executive branch had ignored a transparency request from both parties on the Intelligence Committee.
The sealed wrapper closes off the only mechanism by which compliance could be verified. The FISC required the FBI and NSA to re-engineer specific tools, but the opinion names neither the tools nor the standard they must meet in any public document.
Cotton and Warner have read an opinion the public is barred from seeing. The administration's claim that the tools are fixed rests on a document it has not released.
The 45-day extension expires around June 14. A clean reauthorization would carry the FISC's sealed conditions forward for another year, with no audit of whether the FBI re-engineered the flagged tools or rebranded them.