Congressional hearing reveals deep concerns about federal surveillance practices

America’s surveillance architecture has grown from an opaque counterterrorism framework into a complex and far-reaching system with deep implications for civil liberties. The federal government’s expanding use of facial recognition, AI, and data aggregation tools has prompted urgent concerns among civil rights advocates, legal scholars, technologists, and lawmakers. And their message is clear: without stronger oversight, warrant requirements and transparency, the very technologies deployed in the name of safety may become the greatest threat to Americans’ freedoms.

Last year, the U.S. Commission on Civil Rights detailed in a 194-page report how federal agencies are using these technologies in criminal investigations and civil services. While the report acknowledged the potential benefits of facial recognition in improving law enforcement capabilities, identifying human trafficking victims, and expediting airport screenings, it also raised a red flag. The commission said the tools are being used in a regulatory vacuum that lacks adequate standards, oversight, and training.

The commission cited troubling disparities in the accuracy of facial recognition systems across race and gender lines, which open the door to discriminatory outcomes, said Commission Chare Rochelle Garza, who warned that the unregulated use of facial recognition “poses significant risks to civil rights, especially for marginalized groups who have historically borne the brunt of discriminatory practices.”

The urgency of these warnings is reflected in mounting oversight efforts by Congress. On March 27, House Committee on Judiciary Subcommittee on Crime and Federal Government Surveillance Chairman Andy Biggs and Rep. Warren Davidson sent a letter to Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) Acting Director Kash Patel in which they raised serious concerns about ATF’s use of facial recognition to identify gun owners.

Their letter cited a February Government Accountability Office (GAO) audit report that revealed that ATF accessed commercial facial recognition systems such as Clearview AI and Vigilant Solutions, and had conducted at least 549 searches in a two-and-a-half-year period. More alarming, GAO found ATF lacked any dedicated policy governing the use of these tools, had not conducted a risk assessment, and failed to require staff training on the proper use and limitations of facial recognition technology.

Despite ATF’s claim to have halted its use of commercial services by April 2023, Biggs and Davidson said, “a recent report by Senator Ron Johnson on the July 2024 attempted assassination of President Trump in Butler, Pennsylvania … revealed that ‘ATF was apparently requesting … photos of [the shooter] for facial recognition purposes.’ This information raises concerns about whether ATF continues to possess and potentially use facial recognition technology despite ATF’s claims to the contrary.”

“Notably,” wrote Biggs and Davidson, “as of August 2024, ATF apparently informed GAO that it ‘no longer allowed [its] employees to use commercial facial recognition services[,]’ and instead ‘leverages non-federal facial recognition systems by requesting that state and local partners run [facial recognition] searches.’”

The two lawmakers expressed particular concern that ATF may be circumventing restrictions by relying on state and local agencies to conduct searches on its behalf, and that such indirect use does not absolve ATF of its constitutional obligations. The lack of internal tracking, training, and accountability mechanisms represents a systemic risk to Americans’ privacy and Second Amendment rights.

“According to a March 2024 GAO report,” Biggs and Davidson said, “ATF does not ‘have guidance or policies specific to facial recognition technology that addressed civil rights and liberties[,]’ and ‘used facial recognition services without requiring staff to take training on topics such as how facial recognition technology works, what photos are appropriate to use, and how to interpret results.’ Worse yet, ATF headquarters officials informed GAO that they were ‘initially unaware that ATF staff sent photos to’ commercial facial recognition services.”

None of these issues exist in a vacuum. On April 8, the subcommittee heard from civil libertarians and conservative legal scholars who painted an alarming picture of broader federal surveillance. The hearing is part of a congressional initiative to scrutinize federal surveillance programs and their impact on U.S. citizens, with the goal of fostering greater transparency and accountability by government agencies.

One of the main concerns of the witnesses is that the government is using Section 702 of the Foreign Intelligence Surveillance Act (FISA) – originally intended to target foreign threats – to carry out warrantless searches of Americans’ data on a massive scale. Section 702 is primarily carried out by the National Security Agency’s signals intelligence collection activities.

Gene Schaerr, general counsel for the Project for Privacy and Surveillance Accountability, warned that Americans are being quietly swept into a surveillance dragnet that operates far beyond its legal mandate. He highlighted how federal agencies, including the Federal Bureau of Investigation and Internal Revenue Service, have accessed data ranging from digital communications to location information without a warrant and often by purchased from commercial data brokers.

These practices, Schaerr argued, allow the government to construct deeply personal profiles of individuals’ lives, beliefs, and relationships without judicial oversight.

Kia Hamadanchy, Senior Policy Counsel for the American Civil Liberties Union’s National Political Advocacy Division, pointed out that “in December, the District Court for the Eastern District of New York ruled in a criminal case, United States v. Hasbajrami, that the warrantless searches the FBI conducts under Section 702 violated the Fourth Amendment. This decision stemmed from a 2019 Second Circuit Court of Appeals ruling, which held that querying U.S. persons’ data collected under Section 702 triggers separate Fourth Amendment scrutiny. This ruling is the first of its kind and one of the rare cases where criminal defendants have received notice of Section 702 surveillance.”

Consequently, “Congress should be asking the FBI whether it has changed any policies or practices in response to the court’s reasoning or conclusions addressing the warrant requirement,” Hamadanchy told the subcommittee.

“The FBI may respond that the opinion addressed only queries that occurred in 2011, but that does not change that the court’s reasoning about the warrant requirement for queries and limited scope of the foreign intelligence exception to that requirement.” Hamadanchy said. “In particular, the court focused on the fact that there were no exigent circumstances to justify the warrantless queries at issue. Today, many of the FBI’s Section 702 queries for Americans’ communications do not involve exigent circumstances, and for these searches, Hasbajrami’s reasoning would require the FBI to get a warrant.”

In 2023, the FBI conducted over 57,000 warrantless backdoor searches of Americans’ communications, yet only 17 of those would have been impacted by the “modest restrictions” imposed by the 2023 Reforming Intelligence and Securing America Act. Most of these searches occurred under the pretext of foreign intelligence gathering, which remains largely exempt from oversight, and “there are …. continuing signs that the government is failing to provide notice of Section 702 surveillance in criminal prosecutions,” Hamadanchy said.

The legislation reauthorized Title VII of FISA for five years and made changes that included certain restrictions on surveillance under Section 702.

James Czerniawski, a senior policy analyst for Americans for Prosperity, highlighted the troubling fusion of government surveillance and commercial data exploitation. He emphasized that by buying information from private data brokers the government sidesteps Fourth Amendment protections that would otherwise require warrants. “The purchase of such information by the government creates an additional threat, as law enforcement can then use this data tied to Americans engaging in constitutionally protected activities and subject them to additional surveillance via other technologies,” Czerniawski told the subcommittee.

This “data broker loophole,” Czerniawski argued, allows law enforcement to amass location history, search records, and other intimate data with little to no accountability. He noted that public support for reform is overwhelming and cited recent polling indicating that over three-quarters of Americans support warrant requirements for government access to their communications and purchased data.

Hamadanchy noted that the Office of the Director of National Intelligence recently “released a partially declassified report [on] the Intelligence Community’s purchase of commercially available information [which] found that the Intelligence Community is collecting increasing amounts of commercially available information, but did not know how much it is collecting, what types, or what it was doing with the data.”

Former judiciary committee chief of staff and general counsel Philip Kiko took a more structural view in his testimony before the subcommittee, arguing that Congress itself must reclaim its constitutional oversight authority. Kiko praised recent efforts to shorten reauthorization timelines for surveillance authorities and increase transparency.

However, he warned that real-time oversight and increased staffing of security-cleared congressional aides were essential to ensuring meaningful checks on executive power. He called for permanent reforms like the Fourth Amendment is Not for Sale Act, which would prohibit government agencies from buying data that would otherwise require a warrant to collect. The bill was passed by the House.

These concerns dovetail with the Civil Rights Commission’s findings on facial recognition. The commission’s report named the Department of Justice (DOJ), Department of Homeland Security (DHS), and Department of Housing and Urban Development (HUD) as key federal users of the technology.

The FBI, U.S. Marshals, and the Child Exploitation and Obscenity Section of DOJ are among the primary operators, while DHS has deployed face biometrics at all U.S. international airports and seaports, and HUD has integrated facial recognition into security cameras at federally funded housing sites. Yet only DHS and DOJ have interim policies governing its use, while HUD does not track usage at all.

Commissioner Mondaire Jones underscored how disparities in accuracy, insufficient oversight, and lack of access to legal recourse create barriers to justice, particularly for vulnerable populations. These findings echo the concerns raised by the subcommittee: namely, that surveillance technologies – when implemented without rigorous standards, transparency, or judicial oversight – can and do infringe on Americans’ constitutional rights.

The solution, according to lawmakers and experts, is twofold. First, Congress must enact legislation that enforces the warrant requirement for all U.S. person queries, whether conducted through surveillance databases or via purchased data. Second, robust standards must be established to govern the use of facial recognition, including rigorous testing for bias, mandated training for law enforcement personnel, and ongoing oversight by independent bodies.

The message from civil rights groups, policy analysts, and lawmakers is clear: if left unchecked, the fusion of facial recognition, AI, and warrantless surveillance threatens to undermine the democratic principles that differentiate America from authoritarian regimes. With bipartisan consensus building and growing public awareness, Congress has the power to ensure that privacy, liberty, and accountability is in place and enforced.

Article Topics

biometric identification  |  biometrics  |  facial recognition  |  law enforcement  |  regulation  |  surveillance  |  U.S. Government  |  United States