At 12:01 a.m. on Saturday, the U.S. government’s authorization to monitor communications of noncitizens outside the country without a warrant – seen by some as a key counterterrorism tool – expired.
Congress did not renew Section 702 of the Foreign Intelligence Surveillance Act (FISA) in part because of a standoff with President Donald Trump over filling the role of director of national intelligence. The expiration doesn’t necessarily mean U.S. intelligence agencies no longer have that tool, because the provision was court-approved in March for another year.
But the expiration could still impact national security. Telecommunications companies, concerned about getting into legal trouble, might not want to provide information needed for that intelligence-gathering.
Why We Wrote This
Some see Section 702 of the Foreign Intelligence Surveillance Act as a provision that’s critical to U.S. counterterrorism work. But it has been controversial because of privacy concerns, and now, its renewal is caught in a standoff between Congress and President Donald Trump.
“This will be an untested experiment, and I think it’s quite unfortunate that we’ve decided to run this experiment at a time when we have numerous very serious threats,” says Adam Klein, former chairman of the U.S. Privacy and Civil Liberties Oversight Board.
With the United States co-hosting the World Cup and upcoming 250th celebrations in Washington, and amid an ongoing war with Iran, many lawmakers and experts see an increased need for counterterrorism efforts.
What a lapse means
Section 702 has been the subject of extensive controversy, mainly because U.S. citizens who are communicating with foreign targets can get caught in that surveillance net.
Often, foreign intelligence targets’ text and phone communications pass through the U.S. – for example, if the person is using a U.S.-based provider like Google. FISA Section 702 allows the government to compel providers to assist in acquiring that information.
In 2022, the National Security Agency reported that 59% of the articles in the president’s daily brief included information obtained through Section 702.
Mr. Klein says the provision is a way for the government to gather vast amounts of intelligence about national security threats on a low budget without sending U.S. agents overseas and putting them in danger.
“This has unlocked unbelievable intelligence value for the U.S. government at very, very low cost,” he says.
That could now be threatened. In April, Politico reported some telecommunications companies might choose not to cooperate with the government’s surveillance requests after Section 702 expires. Some have privately expressed concerns they could be sued for handing over consumers’ data if there’s no longer a law on the books compelling them to do so.
It’s unclear whether the government, without being able to cite Section 702, would be able to force these companies to obey if they push back.
Carrie Cordero, a senior fellow at the Center for a New American Security, sees the issue with providers as a valid concern, though she doesn’t foresee immediate effects. But with events like the World Cup, her concern is that if a new threat emerges that isn’t already covered under the certifications that extend through next March, the lapse means the federal government wouldn’t have any legal provision to adapt to new circumstances.
Senators had been working toward a bipartisan extension of Section 702 until President Trump appointed Bill Pulte, the director of the Federal Housing Finance Agency, to be acting director of national intelligence. Mr. Pulte lacks national security experience and has said he would implement large-scale staff reductions at the president’s request.
Democrats then refused to move forward with FISA unless the president backtracked. On June 11, President Trump nominated Jay Clayton, a U.S. attorney in New York, to be the permanent director of national intelligence. However, Democratic leaders are still demanding a guarantee that Mr. Pulte will not serve as interim director while Mr. Clayton’s nomination proceeds.
A bipartisan compromise was expected to come with some reforms aimed at tackling privacy concerns, including a provision to narrow the definition of the type of company required to provide records to the government.
For Democratic Sen. Mark Warner of Virginia, who has been a leading voice on the left pushing for reauthorizing FISA while supporting reforms, having Mr. Pulte as DNI is an even bigger national security threat than FISA’s expiration.
“Somebody without a security clearance, who has not even been able to keep mortgage information confidential, is going to get keys to the whole intelligence community,” he told reporters Thursday.
Congress could still vote to reestablish the provision. FISA is a big priority for many members, but Congress also faces a range of competing priorities before its August recess. House members are scheduled to be in their districts until June 23.
“I don’t know a person that does not want to extend FISA, and I know most people want to make sure Americans aren’t surveilled, so there’s probably a deal there,” said Republican Sen. Rick Scott of Florida in an interview Thursday.
FISA in the long term
Section 702 is an issue that doesn’t split evenly along party lines. Despite the backlash to Mr. Pulte’s appointment, many Democrats see the provision as an important security tool they would like to see renewed.
A substantial group of Republicans agree that Section 702 should be reformed, and Republican Sen. Rand Paul of Kentucky is content to let it expire without meaningful changes that ensure Americans’ privacy.
Patrick Eddington, a senior fellow at the libertarian-leaning Cato Institute and a former CIA imagery analyst, says the government has plenty of other tools to gather the intelligence it needs, including purchasing commercial data, reliance on international allies, and an executive order signed by President Ronald Reagan that authorizes U.S. intelligence agencies to collect communications data on noncitizens outside the country.
“There is no going dark in that respect,” says Mr. Eddington.
He also argues that most U.S. intelligence failures, including those leading up to the terrorist attacks of Sept. 11, 2001, did not arise from a lack of data but from a lack of government coordination.
Ms. Cordero of the Center for a New American Security worries the executive order Mr. Eddington mentioned isn’t enough: She says service providers could still balk at turning over information because the order relies on a “much more uncertain executive authority” that provides less structure around what kind of cooperation is expected of these private companies.
She says another underlying problem is that Section 702 is always authorized with a “sunset” provision – which is intended to make sure Congress evaluates the balance of security issues and privacy concerns, but which she says ends up producing a “constant fire drill.”
“The sunsets are not assisting in enabling Congress to have a thoughtful debate about legitimate civil liberties and privacy questions that the surveillance raises,” she says.