SAFE Act
- Sponsor
- Sen. Lee, Mike [R-UT]
- Committees
- Judiciary Committee (primary)
- Last action
- Feb 23, 2026
Bottom line
The SAFE Act reauthorizes critical foreign intelligence surveillance authorities while imposing substantial new restrictions and oversight mechanisms, particularly on FBI access to U.S. person data and government acquisition of data from commercial brokers.
What it actually does
This bill, known as the SAFE Act, reauthorizes Title VII of the Foreign Intelligence Surveillance Act (FISA), including Section 702, until April 20, 2028. It implements significant reforms to how the Federal Bureau of Investigation (FBI) can query data collected under Section 702, requiring stricter approval processes, mandatory audits, and enhanced accountability for violations. The bill also places new limitations on intelligence and law enforcement agencies' ability to purchase U.S. person data from data brokers and expands the role and access of amicus curiae in the FISA Court.
Proponents argue
Supporters argue that the bill strikes a necessary balance between safeguarding national security and protecting the civil liberties and privacy of United States persons. They contend that the reforms address documented abuses and enhance public trust in intelligence agencies by introducing robust oversight, accountability, and transparency measures, ensuring that vital intelligence tools are used responsibly and lawfully.
Opponents contend
Critics may argue that while the reforms are a step in the right direction, they do not go far enough to fundamentally protect U.S. persons' Fourth Amendment rights, particularly by not requiring a warrant for all U.S. person queries of Section 702 data. Some may also contend that certain provisions could still be circumvented or that the reauthorization of Section 702 itself, even with reforms, remains problematic for privacy.
The bill is moderately dense due to its technical nature and numerous amendments to existing law, requiring careful reading to grasp the full scope of changes.
Sec. 101
FBI Query Procedure Reform and Warrantless Access Prohibition
This section mandates regular audits of FBI queries of Section 702 data, requiring additional prior approvals for sensitive queries (e.g., those involving elected officials, media, religious organizations, or batch queries). It also requires written justification for all 'covered queries' (those likely to retrieve U.S. person information) and an affirmative election to include Section 702 data in searches. Crucially, it prohibits warrantless access to U.S. person communications or information obtained through a covered query, with limited exceptions like existing court orders, emergencies, or consent.
Supporters argue
Supporters argue these reforms are essential to restore public trust in the FBI's use of Section 702, directly addressing past compliance failures and ensuring that U.S. persons' privacy is adequately protected while still allowing the FBI to pursue legitimate national security investigations under proper safeguards.
Critics contend
Some critics might argue that the exceptions to the warrantless access prohibition are too broad, potentially leaving loopholes for government access. Others might contend that the new approval processes could unduly burden FBI agents and slow down critical investigations, thereby hindering national security efforts.
Tradeoffs
This provision balances the need for robust foreign intelligence collection with the imperative to protect the constitutional rights of U.S. persons. It introduces bureaucratic hurdles to ensure accountability, potentially at the cost of some operational agility for the FBI.
Sec. 104
Strengthened Prohibition on Reverse Targeting
This section amends FISA to clarify and strengthen the prohibition against 'reverse targeting.' It changes the language from prohibiting acquisition 'if the purpose' is to target a U.S. person to 'if *a* purpose' is to target one or more U.S. persons or persons reasonably believed to be in the United States. This aims to prevent intelligence agencies from intentionally collecting foreign intelligence with the secondary, but intended, goal of acquiring information on a specific U.S. person.
Sec. 201
Required Disclosure of Relevant Information and Accuracy Procedures in FISA Applications
This section adds a new Title IX to FISA, requiring the Attorney General and other federal officers to provide the FISA Court with *all material information*, including exculpatory information, when making an application. It also mandates the adoption and certification of 'accuracy procedures' to ensure applications are accurate and complete, including verifying factual assertions, assessing human source reliability, and disclosing prior relationships with targets. Judges must find these procedures are met before issuing an order. Additionally, it limits the use of information from media sources or political campaigns in FISA applications.
Sec. 205
Prohibition on Parallel Construction and Expanded 'Derived From' Definition
This section introduces a new definition of 'derived from' into FISA, explicitly stating that information is derived from surveillance if the government would not have originally possessed it 'but for' that surveillance, regardless of claims of attenuation, inevitable discovery, or re-obtainment through other means. This aims to prevent 'parallel construction,' where evidence obtained through FISA is used to initiate a separate investigation, obscuring the original source. The Attorney General and Director of National Intelligence are required to publish policies and guidance on this new definition.
Sec. 301
FISA Court Amicus Curiae Expansion and Authority
This section significantly expands the role and authority of amicus curiae in the Foreign Intelligence Surveillance Court (FISC). It mandates the appointment of one or more amicus curiae (including at least one with privacy/civil liberties expertise) for cases involving novel legal interpretations, First Amendment concerns, sensitive investigative matters, new technologies, or programmatic surveillance reauthorization. Amicus curiae are granted broader access to government applications, supporting materials, and FISA Court opinions, and can proactively raise any novel privacy or legality issues. They are also authorized to petition the FISA Court to certify questions of law to the FISA Court of Review, and the FISA Court of Review to the Supreme Court.
Sec. 501
Limitation on Intelligence Acquisition of United States Person Data
This section prohibits elements of the intelligence community from acquiring 'covered data' (data linked to U.S. persons or persons in the U.S.) directly or indirectly, with specific exceptions. These exceptions include acquisitions authorized by court order, for employment-related purposes, for compliance support, in emergencies involving imminent threat of death or serious bodily harm, with consent, or as part of non-segregable datasets (which then require strict minimization and destruction of covered data). It also prohibits querying covered data for specific U.S. persons without an exception and bans the use of data acquired in violation of this section.
Sec. 502
Limitation on Law Enforcement Purchase of Personal Data from Data Brokers
This section amends 18 U.S.C. 2702 to prohibit law enforcement agencies ('covered governmental entities') from obtaining 'covered personal data' (personal data relating to U.S. persons) in exchange for anything of value from 'covered organizations' (data brokers). Similar to the intelligence community provision, it includes exceptions for court orders, whistleblower disclosures, compulsory legal process, employment/background checks (with consent), lawfully obtained public data, life/safety emergencies, compliance, and consent. It also mandates minimization procedures for any data acquired under exceptions and prohibits the use of data obtained in violation of these rules.
Sec. 601
Enhanced Reports by Director of National Intelligence
This section significantly expands the annual reporting requirements for the Director of National Intelligence (DNI) to Congress. New reporting elements include the subject matter of Section 702 certifications, the number of persons targeted and selectors used (disaggregated by certification), the total number of directives issued (by type of electronic communication service provider), and detailed statistics on disseminated intelligence reports containing U.S. person identities (both masked and unmasked) from Section 702 and non-FISA collection. It also requires reporting on queries of U.S. person data without court orders, criminal proceedings using non-FISA acquired data, and estimates of encrypted communications retained over five years.
The bill changes the language regarding reverse targeting from 'if the purpose of such acquisition is to target' a U.S. person to 'if *a* purpose of such acquisition is to target' a U.S. person. This subtle change significantly strengthens the prohibition.
Sec. 104, amending FISA Section 702(b)(2), (d)(1), (h)(2)(A)(i), and (j)(2)(B)
Why it matters:This is a technical legislative drafting choice to ensure consistent application across different parts of Section 702, but its substantive impact is profound, making it a critical detail.
Case for: Supporters argue this change closes a potential loophole, ensuring that intelligence agencies cannot claim a primary foreign intelligence purpose to justify an acquisition that also has an intentional, secondary purpose of targeting a U.S. person. It provides stronger protection against indirect targeting.
Case against: No specific opposition is typically raised against strengthening the prohibition on reverse targeting itself, as it aligns with constitutional principles. However, some might argue that such a nuanced change could lead to increased litigation over intent.
Estimated impact: This change could lead to a more stringent interpretation of targeting rules, potentially reducing the number of instances where U.S. person data is incidentally collected as a result of an acquisition that also had a U.S. person targeting objective.
The bill includes sunset clauses for both the changes to the definition of 'electronic communication service provider' (ECSP) and the limitations on directives to certain ECSPs. Both are set to expire on December 31, 2026.
Sec. 106 and Sec. 107(b)
Why it matters:This is a common legislative practice for temporary authorities or reforms, often used to allow for a trial period or to facilitate passage by making contentious provisions time-limited. It could also be a compromise to get the bill passed.
Case for: Proponents might argue that the sunset allows for a period of evaluation of the expanded ECSP definition and the new limitations on directives, enabling Congress to revisit and refine these provisions based on real-world experience. It provides flexibility.
Case against: Critics might contend that making these changes temporary creates uncertainty for both government agencies and service providers, potentially leading to inconsistent application or a rush to re-legislate without proper review. It could also be seen as a way to temporarily placate privacy advocates without permanent reform.
Estimated impact: The temporary nature means that the expanded scope of FISA directives and the specific limitations on them will only be in effect for a limited period, potentially leading to another legislative battle over these definitions and authorities in late 2026.
This section sunsets the 'grandfather clause' of FISA's business records provision (Title V) 180 days after the enactment of the SAFE Act. This means that existing investigations authorized under Title V before its reauthorization (or expiration) will no longer be able to continue indefinitely under the old rules.
Sec. 206
Why it matters:This is a technical cleanup provision, ensuring that older authorities do not persist indefinitely, which is common in legislative transitions. However, it has a substantive impact on ongoing investigations.
Case for: Proponents argue that this ensures all ongoing investigations under the business records provision are subject to the most current legal standards and oversight, preventing the indefinite continuation of surveillance under potentially outdated or less protective authorities.
Case against: Law enforcement and intelligence agencies might argue that ending the grandfather clause could disrupt long-term investigations that were lawfully initiated under previous authorities, potentially compromising national security or criminal cases.
Estimated impact: This provision will require a review and potential re-authorization under new standards for any long-running investigations that were relying on the grandfather clause of the business records provision, affecting an unknown number of cases.