Photo by Mark Klein, via Wikimedia Commons, licensed under CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0/).
On August 7, 2024, Taylor Swift’s three sold-out shows in Vienna, Austria, were abruptly canceled in the midst of her Eras tour, which was on its way to becoming the largest tour in history.[1] While the suspects and plot were based in Austria, it was not the Austrian authorities who discovered them. Austrian officials said only that the tip came from abroad.[2] Indeed, it was announced three weeks later that the Central Intelligence Agency was responsible for discovering the plans and informing Austrian authorities.[3] Only a few days before Swift arrived in Austria, Austrian authorities were tipped off about the would-be attacker, Beran A.[4] On August 7, the day before the first concert, Beran A.’s home was raided by federal law enforcement, and he was later convicted and sentenced to 15 years in prison for terrorism-related offenses.[5] Swift herself commented on the plot after finishing the European leg of the tour, saying “I was so grateful to the authorities because thanks to them, we were grieving concerts and not lives.”[6] Some of that gratitude belonged to a foreign government. At the time, Austrian agencies were prohibited from monitoring their citizens’ text messages.[7] So how did the United States government know?
The United States government gets its warrantless surveillance powers from two main sources: Executive Order 12,333 and FISA Section 702.[8] FISA Section 702 allows the government to “monitor Americans’ international emails, web-browsing, and phone calls.”[9] This is also done without a warrant, as the text of the statute allows the government to send an order to compel communications service providers to hand over specific foreign communications, and penalize them if they resist.[10] Many Americans are caught in the statute’s dragnet because any communications from a non-U.S. Person reasonably believed to be abroad can be targeted even if a U.S. Person is a party within them, a side-effect known as “incidental collection.”[11] On June 12, 2026, Section 702 expired, but the surveillance did not stop.[12] Data collection under Section 702 must be approved annually by a FISA court, and a savings clause provides that collection may continue for the duration of the court’s authorization.[13] The 2026 certifications are set to expire on March 17, 2027.[14]
What will happen if Section 702 isn’t reauthorized? If you ask Senators like Chuck Grassley and John Thune, they’ll tell you that calamity awaits. Senator Thune warned his colleagues just before its expiration, “[I]n four days, the Section 702 program will go dark. America’s enemies, however, will not. . . .”[15] Senator Grassley’s prognosis was also bleak: “Americans will suffer.”[16] Both Senators credit Section 702 as the crucial mechanism for foiling the Vienna plot while praising the Section’s “guardrails” against abuse.[17] However, when they defend the Section’s merits, they hide the source of the controversy.
According to the CIA, the government is prohibited from using Section 702 to “U.S. Persons’” electronic communications, defined as a U.S. citizen, lawful permanent resident, or U.S. corporation.[18] It claims that “[e]very . . . target is carefully reviewed to ensure that they are foreigners, located overseas, who communicate foreign intelligence information.”[19] However, when searching for a legitimate target, the government collects massive amounts of data, and because of the reality of incidental collections, Section 702(e) requires agencies to adopt minimization procedures that must be annually certified by a FISA court.[20] In 2025, the CIA’s minimization procedures allowed for the preservation of raw data on a U.S. Person for no longer than five years, but this can extend indefinitely if the data is deemed valuable.[21] Regardless of how long a U.S. Person is on these servers, their full name, email address, and other information is freely available to search during this time, and other agencies may search through this data without getting a warrant.[22] These searches are referred to as “backdoor searches” because they do not run afoul of Section 702—the data was originally collected for a legitimate foreign purpose, and other agencies are making use of the data while they have it.[23]
The FBI was historically the heaviest user of the U.S. Person “Queries,” searching in the 702 databases 119,383 times in 2022.[24] The targets of these backdoor searches were not random; they included Black Lives Matter protestors, members of activist groups, and 19,000 political campaign donors.[25] The subsequent backlash led Congress to pass the Reforming Intelligence and Securing America Act (RISAA) in 2024 after a brief expiration of Section 702.[26] The law was intended to remedy the excesses of agencies like the FBI, banning backdoor searches fishing for evidence of a crime, and requiring supervisory approval before running certain searches.[27] In 2024 the Office of the Director of National Intelligence reported that U.S. Person Queries conducted by the FBI dropped to 5,518.[28] But were the reforms really what they seemed?
In his reauthorization remarks for 2026, Senator Grassley claimed that Section 702 was the “most transparent and most scrutinized intelligence collection in history.”[29] In truth, Section 702 is heavily scrutinized because of how often the rules are disregarded. Although the FBI claimed that U.S. Person Queries were down to 5,518, it failed to mention that it was using an “advanced filter function” that still allowed it to access 702 data.[30] This was a workaround that did not count as a Query, and so the actual number of backdoor searches remains unknown.[31] This advanced filter function was shut down upon discovery, but reactivated only months later.[32]
Furthermore, the Trump Administration is refusing to remain transparent about the methods and scale of domestic surveillance. The administration has refused to publish the 2026 opinion approving the certifications in violation of Section 602, which requires the release of a FISC opinion within 180 days.[33] The 2026 certifications were dated March 17, but the 180-day window closed on September 13 with no release.[34] While the 2026 certification opinion remains classified, the judge who approved the 2026 certifications reportedly objected to the use of tools like the FBI’s advanced filter function by multiple agencies.[35] Internal watchdogs like the FBI’s Office of Internal Auditing have been hollowed out, as it was folded into the Inspection Division in May of 2025.[36] On October 26, 2026, Senators Wyden and Schiff sent a joint letter to Director of National Intelligence Jay Clayton and Attorney General Todd Blanche demanding they release the March FISC opinion as soon as possible.[37]
Supporters of FISA Section 702 are framing the ongoing debate as an all or nothing decision: vote for 702 as-is, or risk Americans dying at their next concert. It is not a prudent decision to support a reauthorization of a broad law that includes loopholes for agencies to exploit and search Americans’ communications without a warrant. As agencies continue to dodge accountability with the seeming support of the executive, it is clear that policing Section 702 should not be left to the agencies that run it. The time for reform is now, and not just figuratively. Since Section 702 has lapsed, the reauthorization bill currently being debated gives lawmakers an opportunity to put protections first.[38] Requiring a warrant for 702 U.S. Person Queries would close the backdoor, as the FBI and other agencies would have to show the court what they are looking for just like any other domestic investigation. This balances national security with civil liberties, as the FBI will no longer be able to comb through Americans’ personal data looking for probable cause. It will not stop the intelligence that stopped Beran A.
Jonathan Smith is a second-year law student at the Benjamin N. Cardozo School of Law and a Staff Editor at the Cardozo Arts & Entertainment Law Journal. He is interested in music law and trademark law, and previously interned with the Fender Musical Instruments Corporation. He owns four guitars and plays them well.
[1] Julia Jacobs, Taylor Swift’s Vienna Concerts Are Canceled After Terror Plot Arrests, N.Y. Times (Aug. 7, 2024), https://www.nytimes.com/2024/08/07/arts/music/taylor-swift-concert-terror-plot-vienna.html [https://perma.cc/JN93-CBAA]; Eric Frankenberg, Taylor Swift’s The Eras Tour Wraps as First Tour to Pass $2 Billion in Sales, Billboard (Dec. 9, 2024), https://www.billboard.com/music/chart-beat/taylor-swift-eras-tour-earnings-2-billion-sales-1235847513/ [https://perma.cc/33V9-ZMVP]; Barracuda Music (@barracuda.music), Instagram (Aug. 7, 2024), https://www.instagram.com/p/C-YXeSjMG4q/?hl=en&img_index=1 [https://perma.cc/HXN8-WLP6] (“Taylor Swift | The Eras Tour Vienna Shows Cancelled Due to Government Officials Confirmation of Planned Terrorist Attack. With confirmation . . . of a planned terrorist attack at Ernst Happel Stadium, we have no choice but to cancel the three scheduled shows for everyone’s safety.”).
[2] Nicolas Stockhammer & Colin Clarke, The August 2024 Taylor Swift Vienna Concert Plot, 18 CTC Sentinel, Jan. 2025, at 8, 11; Change in Leadership at DSN: Omar Haijawi-Pirchner Steps Down Early, Vindobona (Sept. 21, 2025, at 23:28 CEST), https://www.vindobona.org/article/change-in-leadership-at-dsn-omar-haijawi-pirchner-steps-down-early [https://perma.cc/628A-HYJT].
[3] Katie Bo Lillis, US intelligence helped stop terror plot targeting Taylor Swift concert, CIA deputy director confirms, CNN (Aug. 29, 2024, at 09:46 ET), https://www.cnn.com/2024/08/29/politics/taylor-swift-concert-plot-cia-us-intelligence [https://perma.cc/CC9H-GRCC].
[4] DSN-Bericht mit Details zu Terrorplänen [DSN Report With Details on Terror Plans], ORF.at (Aug. 15, 2024, at 19:30 CEST), https://orf.at/stories/3366652/ [https://perma.cc/L46R-8TSB]; see also Stockhammer & Clarke, supra note2, at 11.
[5] Stockhammer & Clarke, supra note 2, at 8; Austrian man sentenced to 15 years in prison for plot to attack Taylor Swift concert in Vienna, CNN (May 28, 2026, at 16:39 ET), https://www.cnn.com/2026/05/28/europe/austrian-attack-taylor-swift-concert-latam-intl [https://perma.cc/N69K-DACE].
[6] Taylor Swift (@taylorswift), Instagram (Aug. 21, 2024), https://www.instagram.com/p/C-8sKGYymIC/ [https://perma.cc/EB24-TWF2].
[7] Stockhammer & Clarke, supra note 2, at 11. On July 9, 2025, Austria’s National Council passed legislation authorizing the DSN to monitor encrypted communications like those on WhatsApp or Signal. See Austrian Parliament Approves Surveillance of Messenger Services, The International (Vienna) (July 9, 2025), https://theinternational.at/austrian-parliament-approves-surveillance-of-messenger-services [https://perma.cc/RRD7-V6A7]; Austrian government agrees on plan to allow monitoring of secure messaging, Reuters (June 18, 2025, at 11:08 ET), https://www.reuters.com/world/austrian-government-agrees-plan-allow-monitoring-secure-messaging-2025-06-18/ [https://perma.cc/76Q9-PKP3].
[8] Ashley Gorski, Patrick C. Toomey & Kate Ruane, The Future of U.S. Foreign Intelligence Surveillance, Just Sec. (Nov. 11, 2020), https://www.justsecurity.org/73321/the-future-of-u-s-foreign-intelligence-surveillance/ [https://perma.cc/7L5E-36WB].
[9] Id.
[10] Foreign Intelligence Surveillance Act of 1978 § 702, 50 U.S.C. § 1881a(i)(1).
[11] Gorski, Toomey & Ruane, supra note 8. The government recognizes and admits that incidental collection occurs. Incidental Collection in a Targeted Intelligence Program, Intel.gov: Fisa, https://www.intelligence.gov/foreign-intelligence-surveillance-act/incidental-collection-in-a-targeted-intelligence-program [https://perma.cc/7UJN-AXU6] (last visited Oct. 27, 2026).
[12] Section 702 Surveillance Will Continue Until March 2027 Even if the Statute Lapses, Brennan Ctr. For just. (June 9, 2026), https://www.brennancenter.org/media/15756/download/bcj-updated-702-deadline-myth-one-pager.pdf?inline=1 [https://perma.cc/83HY-7ZKY].
[13] Id.
[14] Id.
[15] 172 Cong. Rec. S2672 (daily ed. June 9, 2026) (statement of Sen. Thune).
[16] 172 Cong. Rec. S2657 (daily ed. June 8, 2026) (statement of Sen. Grassley).
[17] Id. (“Now, this tragedy [in Vienna] was halted . . . [b]ecause U.S. intelligence agencies were able to share critical intelligence gathered under Section 702. . . .”); 172 Cong. Rec. at S2672 (“[Section] 702 is the most overseen intelligence collection tool in the world.”); id. (describing “the robust guardrails already in place to ensure that 702 operates within the law”).
[18] Foreign Intelligence Surveillance Act of 1978 § 101(i), 50 U.S.C. § 1801(i).
[19] Cent. Intel. Agency, FISA Section 702: Protecting National Security (2026), https://www.intelligence.gov/assets/documents/702-documents/CIA_FISA_Factsheet_FINAL_20260327.pdf [https://perma.cc/3RMW-9YEU].
[20] Barton Gellman & Ashkan Soltani, NSA Tracking Cellphone Locations Worldwide, Snowden Documents Show, Wash. Post (Dec. 4, 2013, at 15:18 ET), https://archive.is/20241028144254/https://www.washingtonpost.com/world/national-security/nsa-tracking-cellphone-locations-worldwide-snowden-documents-show/2013/12/04/5492873a-5cf2-11e3-bc56-c6ca94801fac_story.html [https://perma.cc/K6AA-SSZN]; see 50 U.S.C. § 1881a(e).
[21] Off. of Dir. of Nat’l Intel., CIA 2025 FISA § 702 Cert ABC Minimization Procedures 2 (2025), https://www.intel.gov/assets/documents/702-documents/declassified/2025/CIA_MPs_2025_Cert_ABC_01172025_Redacted.pdf [https://perma.cc/9DBD-RVZK].
[22] Gorski, Toomey & Ruane, supra note 8; Press Release, ACLU, ACLU, Coalition Urge Congress on Surveillance Reform (Oct. 3, 2017, at 10:00 ET), https://www.aclu.org/press-releases/aclu-coalition-urge-congress-surveillance-reform [https://perma.cc/EYT8-8J7J].
[23] Chris Baumohl, Reforming 702: An Overview, Elec. Priv. Info. Ctr. (Feb. 9, 2023), https://epic.org/reforming-702-an-overview/#_ftn8 [https://perma.cc/2GLV-QBZ4].
[24] Id.; Off. of the Dir. of Nat’l Intel., Section 702: By the Numbers (2026), https://www.intelligence.gov/assets/documents/702-documents/FISA_Section_702_By_The_Numbers-FINAL.pdf [https://perma.cc/E2WW-7TKY].
[25] Newly Released FISC Opinion Reveals FBI Misused FISA Section 702 to Search Racial Justice Protestors, Activist Groups, and Political Campaign Donors, Elec. Priv. Info. Ctr. (May 19, 2023), https://epic.org/newly-released-fisc-opinion-reveals-fbi-misused-fisa-section-702-to-search-for-racial-justice-protestors-activist-groups-and-political-campaign-donors/ [https://perma.cc/D2HS-KUDW]; Section 702 of the Foreign Intelligence Surveillance Act (FISA): 2026 Resource Page, Brennan Ctr. For Just. (Oct. 27, 2026), https://www.brennancenter.org/our-work/research-reports/section-702-foreign-intelligence-surveillance-act-fisa-2026-resource-page [https://perma.cc/4BQT-AE9F].
[26] Charlie Savage & Luke Broadwater, Senate Passes Two-Year Extension of Surveillance Law Just After It Expired, N.Y. Times (Apr. 20, 2024), https://www.nytimes.com/2024/04/20/us/politics/senate-passes-surveillance-law-extension.html [https://perma.cc/7L85-5PH5].
[27] Reforming Intelligence and Securing America Act is Designed to Do Nothing, Brennan Ctr. For Just. (Apr. 11, 2024), https://www.brennancenter.org/our-work/research-reports/reforming-intelligence-and-securing-america-act-could-permanently-codify [https://perma.cc/QHL7-JVJN].
[28] Elizabeth Goitein & Hannah James, The Truth Behind Section 702 Query Statistics, Brennan Ctr. For Just. (Apr. 6, 2026), https://www.brennancenter.org/our-work/analysis-opinion/truth-behind-section-702-query-statistics [https://perma.cc/4Y43-RTN8].
[29] 172 Cong. Rec. at S2657.
[30] Mem. Op. & Order, In re DNI/AG 702(h) Certifications 2025-A, 2025-B, 2025-C, and Predecessor Certifications, No. 702(j)-25-01, at 40 (FISA Ct. Mar. 18, 2025).
[31] Id. (“NSD does not presently have access to historical data that would allow it to determine whether such queries were compliant and is coordinating with the FBI to assess what records of the use of this functionality may have been generated and maintained.”) (internal quotation marks omitted).
[32] U.S. Dep’t of Just., Off. Of The Inspector Gen., A Review of the Federal Bureau of Investigation’s Querying Practices Under Section 702 of the Foreign Intelligence Surveillance Act, Rep. No. 26-002, at 49-50 (Oct. 2025), https://oig.justice.gov/sites/default/files/reports/26-002_0.pdf [https://perma.cc/LAG2-N37R].
[33] Foreign Intelligence Surveillance Act of 1978 § 602, 50 U.S.C. § 1872.
[34] Dell Cameron, The US Government is Hiding a Secret Court Ruling About How It Spies on Americans, Wired (Oct. 26, 2026, at 10:09 ET), https://www.wired.com/story/the-us-government-is-hiding-a-secret-court-ruling-about-how-it-spies-on-americans/ [https://perma.cc/C97Z-24KK].
[35] Charlie Savage & Julian E. Barnes, U.S. Says Wiretap Program Thwarted Attack on 2024 Taylor Swift Concert, N.Y. Times (Apr. 9, 2026), https://www.nytimes.com/2026/04/09/us/politics/section-702-surveillance-fisa.html [https://perma.cc/UY3G-4LD2].
[36] U.S. Dep’t of Just., Off. Of The Inspector Gen., supra note 32, at iv; see also Charlie Savage & Adam Goldman, F.B.I. Closes Unit That Policed Compliance With Surveillance Rules, N.Y. Times (May 20, 2025), https://www.nytimes.com/2025/05/20/us/politics/fbi-kash-patel-office-internal-auditing.html [https://perma.cc/YB4E-WMQ3].
[37] Letter from Sen. Ron Wyden & Sen. Adam Schiff to Jay Clayton, Dir. of Nat’l Intel., and Todd Blanche, Att’y Gen. (Oct. 26, 2026), https://www.wyden.senate.gov/imo/media/doc/2026-10-26_-_letter_from_senators_wyden_and_schiff_to_dni_clayton_and_ag_blanche.pdf [https://perma.cc/X3YE-7F42].
[38] See Allison Mollenkamp, Warrant debate continues to hang over FISA renewal, Roll Call (Oct. 26, 2026, at 19:35 ET), https://rollcall.com/2026/10/26/warrant-debate-continues-to-hang-over-fisa-renewal/ [https://perma.cc/ZB8B-P9ML].
