WASHINGTON (AP) — A key surveillance tool considered vital for preventing terrorist attacks and catching foreign spies expired on Friday after bipartisan efforts to temporarily extend it failed in Congress. This marks a significant lapse for the program known as Section 702 of the Foreign Intelligence Surveillance Act (FISA).
Even as President Donald Trump nominates a new national intelligence director more acceptable to both parties than his initial pick, it remains unclear how soon lawmakers—who are now heading into recess—could revive the spy program. However, there may not be an immediate disruption, as a March court order from the Foreign Intelligence Surveillance Court authorized the government to continue these surveillance powers for another year.
Section 702 grants U.S. spy agencies broad authority to collect and examine communications of foreigners located outside the United States without obtaining a warrant.
U.S. officials view the law as an invaluable national security tool, citing its role in disrupting potential terrorist plots, providing critical insights into ransomware attacks on infrastructure, and aiding in the 2022 drone strike that killed al-Qaida leader Ayman al-Zawahri.
Enacted in 2008, the law codified aspects of a predecessor program created under President George W. Bush.
Since then, officials from both parties have warned that without it, the government would lose crucial overseas intelligence.
The program's renewal has historically been contentious because when the government eavesdrops on foreigners abroad, it also sweeps up communications of American citizens and others in the U.S. who are in contact with those targets.
Civil liberties advocates have raised concerns over revelations that FBI analysts improperly queried the intelligence repository for information about Americans, including those linked to the January 6, 2021, Capitol riot and the 2020 racial justice protests, as well as state and federal political figures. Some advocates argue the government should obtain a warrant before examining Americans' communications.
U.S. officials counter that a warrant requirement would be legally unnecessary and overly cumbersome, and they note that corrective measures have been implemented to reduce improper queries.
The impasse was complicated by unlikely political alliances, uniting privacy-minded liberal Democrats and Republicans who remain suspicious of the intelligence community due to the investigation into ties between Russia and Trump's 2016 campaign. The current holdup stems from pushback over Trump's appointment of Bill Pulte as acting national intelligence director.
Democrats refused to support a FISA extension until Pulte, a Trump loyalist with no national security experience, was withdrawn. Pulte had alarmed lawmakers by using his role as director of the Federal Housing Finance Agency to pursue dubious mortgage fraud investigations against perceived Trump adversaries.
A House vote on a temporary extension collapsed, with 19 Republicans and nearly all Democrats rejecting it, 198-218. A Senate effort also failed.
After those votes, Trump announced he would nominate Jay Clayton, a U.S. attorney in Manhattan and former SEC chairman, as his permanent pick for director of national intelligence.
The selection was warmly received on Capitol Hill, but it was not enough to break the impasse before Friday's deadline. Representative Jim Himes, the top Democrat on the House Intelligence Committee, said he has "known and respected" Clayton for decades and that had he been tapped a week ago, "lots of pain might have been avoided." Himes added, "His intelligence, temperament and deep commitment to public service will make him a terrific DNI."
Senators Tom Cotton and Chuck Grassley have warned the administration to prepare for a potential significant gap in foreign intelligence collection. This expiration is likely the first meaningful lapse of Section 702 since its creation over 15 years ago.
In 2024, the Senate barely missed its midnight deadline before approving a bill signed by President Joe Biden, creating a brief lapse. Despite the current lapse, there is no expectation of an immediate drop-off in intelligence collection, as the U.S.
hosts events this summer with potential national security concerns, including the World Cup and festivities for the 250th birthday of the United States. The March court order certifying the program's renewal for another year means Section 702's authority is expected to remain intact for months.
However, without congressional reauthorization, a telecommunications company or internet service provider could challenge the government's ability to compel cooperation with surveillance demands.