Section 702 surveillance authority expires as Congress fails to act

Washington — A key surveillance tool that lets the government collect foreign intelligence without a warrant has expired.The spy authority, known as Section 702 of the Foreign Intelligence Surveillance Act, lapsed at 12 a.m. Saturday after President Trump’s pick to oversee the nation’s intelligence agencies complicated its renewal.

Democrats have opposed extending the authority since the president announced that he had selected Bill Pulte, the head of the Federal Housing Finance Agency, to temporarily serve as director of national intelligence. In addition to his lack of national security experience, Democrats railed against Pulte for his efforts to go after some of Mr. Trump’s political foes on allegations of mortgage fraud. 

Lawmakers have long sounded the alarm about the risks of letting Section 702 expire. Those who serve on congressional intelligence committees say that about 60% of the president’s daily intelligence briefing is derived from information collected under the law, and they consider it a tool that is critically important to national security. 

But it’s still controversial: the provision already faced stiff opposition from civil liberties-minded lawmakers in both parties who have unsuccessfully pushed for years to implement a requirement for a warrant to search Americans’ data that’s incidentally swept up in the collection. Demands for reforms led Congress to punt the issue twice since its initial expiration in April. 

Here’s what to know about what happens next.

What does Section 702 do? 

Section 702 was first authorized in 2008 and allows the government to sweep up the electronic communications of foreigners abroad without a warrant.

Senate Majority Leader John Thune has noted that policymakers across the federal government rely on the information it provides on a regular basis. 

“It is a program that makes Americans more safe,” the South Dakota Republican said on the Senate floor Thursday. “The intelligence derived from the 702 program is something that has saved American lives — in theaters of conflict, preventing terrorist attacks, preventing drug runners from getting drugs into this country.” 

Documents prepared by the intelligence community and sent to House Republicans earlier this year said “no other foreign intelligence authority can replicate Section 702’s speed, agility, and insights.” 

“FISA Section 702 is often the primary or only source of intelligence in areas where access to other sources of collection would be extremely dangerous and/or costly,” the documents said. They were first reported by Politico, and the White House confirmed sending them.

While Congress reauthorizes the legal framework that allows for the collection of the communications, a secretive court known as the Foreign Intelligence Surveillance Court authorizes the government to conduct the surveillance programs under certain parameters for up to a year. 

After the court greenlights what categories of foreign intelligence information can be collected and determines the government is following appropriate targeting procedures, the government decides whom to target and gathers that data from U.S.-based electronic communications service providers, who are legally compelled to assist. 

What happens now that Section 702 has expired? 

The Foreign Intelligence Surveillance Court’s recertification of the program through March provides cover after the law sunsets, according to some Democratic lawmakers and legal experts. 

“Section 702 will not go dark,” said Elizabeth Goitein, the senior director of the Brennan Center’s Liberty and National Security Program. “That is a myth.” 

Democratic Sen. Dick Durbin of Illinois said the statute “makes it clear that the authorities of FISA are going to be positive and enforceable” until the recertification runs out next year. 

“It will not lapse,” Durbin told reporters this week. “That doesn’t mean we shouldn’t do this on a timely basis.”

Rep. Jamie Raskin of Maryland, the top Democrat on the House Judiciary Committee, argued that “government surveillance activities will continue unchanged” after Friday. 

“Everything that’s already been authorized and certified is already in motion, and current FISA authorizations will continue unaffected, at least through March 17, 2027,” he said. 

Sen. Mark Warner, the vice chairman of the Senate Intelligence Committee who has opposed the extension due to his concerns over Pulte’s leadership, acknowledged Thursday that the expiration could be dangerous. But he noted, when asked about implications for major events like the World Cup, that it’s “not the only tool the intelligence community has.”

Communications providers may not cooperate with the government now that Section 702 has expired

Warner, a Virginia Democrat, said there are questions around whether communications providers would cooperate with the government’s requests after Friday, calling the scenario “a high-risk proposition.” Warner said a couple major companies threatened to stop participating in 2024 before Congress reached a deal to renew Section 702 for two years after a series of abuses by the FBI caused the program to nearly expire.

“I think they don’t mind participating as long as they get indemnification,” Warner said. “If the indemnification goes away — that’s why we’ve always tried to not get into this territory of having it expire.”

But others have pointed to the uncertainty surrounding a lapse, which has never occurred since Section 702 was authorized. 

Republican Rep. Rick Crawford of Arkansas, the chairman of the House Intelligence Committee, also cited the potential for service providers to refuse to comply with the government’s requests for data if the statute lapses. 

The Brennan Center’s Goitein said the law makes clear that the program’s existing certifications and directives remain in force until their expiration date, regardless of whether Section 702 lapses. She said the legal effect of the grandfathering clause was tested in 2008 when the statute preceding Section 702 lapsed and the intelligence court ordered Yahoo to comply with a directive. 

“After that lawsuit, Congress strengthened the grandfathering provision, meaning that the law is even clearer today,” she said. 

702 database “will become increasingly out of date”

Crawford said Wednesday that a lapse in the spy power would be “uncharted territory.” 

“Once this authorization expires, the clock starts ticking,” he said on the House floor. “The implications get worse every single day. While the 702 database would remain available to search, the data in that database will become increasingly out of date.” 

House Speaker Mike Johnson, a Louisiana Republican, warned Thursday after the House failed to pass a short-term extension that Democrats risked “a serious calamity on our shores.” Nineteen Republicans also voted against the extension. 

Rep. Keith Self of Texas, who was one of those Republicans, called such rhetoric “scare tactics.” 

“FISA isn’t going dark. We have the law. We have precedent from 2008,” he said. 

Jake Laperruque, the deputy director of the Center for Democracy and Technology’s Security and Surveillance Project, said it was notable that the House is heading home for a weeklong recess instead of staying in Washington to find a resolution. 

“They would not be flying off to go home if they actually thought it was a real threat,” he said. 

He added, “We feel really confident at this point that there is not going to be any change to operational activities when we hit [the] sunset period.” 

The House is not due to return to Washington until June 23.