With President Donald Trump’s nominees for the directors of national intelligence and the head of the FBI set to appear before Senate committees Thursday, civil liberties advocates may learn something about how Trump plans to approach U.S. government surveillance.
Or not.
The hearings for Tulsi Gabbard, the former Democratic congresswoman, and Kash Patel, a former National Security Council staffer in the first Trump administration, could just end up underscoring whether Trump’s personal views on government spying matter more than those of any of his appointees.
“I think in the end, whatever Gabbard thinks about [Section] 702, whatever Patel thinks about 702, it’s going to be decided by what Trump thinks, right? He’s the president,” said Kia Hamadanchy, senior policy counsel with the American Civil Liberties Union.
Section 702 of the Foreign Intelligence Surveillance Act allows the U.S. to keep tabs on the communications of foreign nationals abroad. But communications between Americans and targeted foreigners have also been swept up in the past, leading privacy groups to label the practice a form of warrantless surveillance.
Section 702 stemmed from the aftermath of the Sept. 11, 2001, attacks and the expansion of security efforts to catch foreign terrorists trying to harm the United States. The provision has been reauthorized several times, most recently in 2024 — almost always, though, after a debate over whether it should be overhauled to reduce its scope.
Trump signed a Section 702 reauthorization during his first term but became a sharp critic of the measure while he was out of the White House and campaigning to get back in. “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS,” he wrote on his Truth Social site in April 2024.
The current reauthorization expires in April 2026.
Hamadanchy said the mystery surrounding how Trump will approach the issue this time may reduce how much weight senators will give Gabbard and Patel’s stated views Thursday.
“There’s a definite concern from Republican senators in terms of what Trump’s going to do. And I think he is a complete wild card on the issue,” Hamadanchy said.
Patrick Eddington, senior fellow with the libertarian Cato Institute, said Section 702 should be central to senators’ questioning of Gabbard and Patel.
“Do they agree that the 702 program[’s] meticulously documented abuses over the last 17 years should result in a total reexamination of the program? Do they agree that the surveillance and police powers of the federal government should never be used to terrorize Americans who oppose an Administration’s policies? If the answers to any of these questions is ‘no,’ Senators should take note,” he said.
He also said Gabbard and Patel should be questioned about a recent federal court ruling in New York that raised doubts about whether data searches are legal under Section 702, with potentially major legal implications.
Gabbard’s own views are up for debate; she reportedly reversed her long-standing criticism of Section 702 and now favors it. That could help her convince senators worried about her national security credentials, given her defense of the now-toppled Bashar Assad regime in Syria and skepticism of U.S. support for Ukraine’s defense against Russia’s invasion.
One senator, though, Sen. Susan Collins (R-Maine), expressed doubt that Gabbard had indeed changed her mind on Section 702. Collins said Gabbard’s answers to questions about the provision appeared “very hedged.”
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Trump already made a move that worried some civil libertarians when he dismissed three members of an advisory panel for federal surveillance programs, the Privacy and Civil Liberties Oversight Board.
“If the president has the ability to just fire PLCOB [members] for any reason, well then it’s really going to have a huge chilling effect on their willingness to [do] oversight in the future if they know they can just be fired,” the ACLU’s Hamadanchy said.
That issue could come up in questions Thursday. While Hamadanchy said PCLOB’s usefulness has varied, “it’s better for PCLOB to exist” than not.