The Surveillance State Is in Your Pocket

The surveillance debate dividing Congress

Agron Hasbajrami was at JFK Airport in 2011, about to board a one-way flight to Turkey, when federal agents arrested him on charges that he was trying to provide support to terrorist groups overseas. Hasbajrami was not a foreigner living abroad. He was a lawful permanent resident living in the United States, and the government’s case eventually revealed one of the most important facts in the surveillance debate: his communications had been swept up through Section 702, the warrantless foreign-intelligence program that targets non-Americans overseas.

The government did not target Hasbajrami directly under Section 702. Instead, his emails were collected because he communicated with people overseas who were the targets. That distinction sounds technical, but it is the crux of a surveillance fight we’ve been having ever since: once an American or US resident’s messages are sitting inside a government surveillance database, should the FBI need a warrant before searching for them?

For years, Hasbajrami did not even know Section 702 had been used in his case. The government initially withheld that fact from his lawyers and notified him only after the Edward Snowden disclosures forced a broader reckoning over warrantless surveillance in criminal cases. In January 2025, more than a decade after his arrest, a federal district court ruled that the FBI’s warrantless Section 702 searches for Hasbajrami’s communications violated the Fourth Amendment, though the court denied his effort to suppress the evidence on other grounds.

That is the real-world version of the debate Congress keeps describing with references to legal provisions. Section 702 is formally about spying on foreigners overseas. But in a world where Americans text, email, message, and call across borders constantly, foreign surveillance can pull domestic communications into government databases. The constitutional question is not abstract.

Congress has once again turned that question into a deadline fight.

On April 30, lawmakers approved a 45-day extension of Section 702 of the Foreign Intelligence Surveillance Act, the controversial authority that allows US intelligence agencies to collect communications of foreigners overseas without warrants targeting specific individuals. The extension passed unanimously in the Senate and 261–111 in the House, after an earlier 10-day extension bought Congress a little more time and a longer House plan ran into trouble in the Senate.

That gives Congress until mid-June to answer the question it keeps avoiding: When the government searches a surveillance database for the emails, texts, or calls of a US person (a legal category that includes citizens and lawful permanent residents), should it have to get a warrant first?

We’ll return to that question below, but first we need to understand the background of the modern surveillance state. The issues sound technical because everything about surveillance law is technical. “FISA.” “Section 702.” “US person queries.” “Minimization.” “Foreign intelligence.” “Business records.” “Roving wiretaps.” “Lone wolves.” The vocabulary alone feels designed to make normal people surrender.

But the constitutional question is simple enough to fit in your pocket, which is appropriate because that is where most of the relevant evidence now lives.