FISA Section 702 Surveillance Powers Continue Despite Expiration

Title VII of the Foreign Intelligence Surveillance Act (FISA) is set to expire at midnight tonight after Congress failed to pass an extension of the controversial spying law. But that doesn’t mean the government’s spying powers will disappear.

Surveillance under Section 702 of FISA “operates under yearlong certifications approved by the FISA Court,” the Brennan Center for Justice at New York University School of Law explained this week. The current certification will remain in place until March 2027 under the yearlong certification issued by the Foreign Intelligence Surveillance Court on March 17, 2026.

“In order to pressure members to accept a bill without meaningful reforms, surveillance hawks are claiming that Section 702 surveillance will ‘go dark’ on June 12 if Congress hasn’t renewed the law,” the Brennan Center said. “Contrary to that claim, Congress planned for potential lapses and made very clear that Section 702 surveillance may continue under existing certifications even if the statute sunsets. Members must not be fearmongered into passing a reauthorization without protecting Americans from warrantless government access to their private communications.”

The Cato Institute concurs, with senior fellow Patrick Eddington writing that “Section 702 operates under annual programmatic certifications approved by the Foreign Intelligence Surveillance Court (FISC), together with the directives served on providers under them. Under the FISA Amendments Act’s transition provision, acquisitions authorized by certifications and directives in effect at the moment of sunset may continue until those certifications expire.”

Rep. Jamie Raskin (D-Md.) said that “government surveillance activities will continue unchanged” after Friday, according to CBS News. “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.

Americans’ messages swept up in FISA surveillance

Title VII, including Section 702, was added to the FISA law in 2008. It was last reauthorized in 2024 when President Biden signed a bill to continue and expand warrantless surveillance under Section 702.

“FISA Section 702 allows US intelligence agencies to spy on foreign targets without a warrant, but the practice constantly sweeps up the communications of Americans who are in contact with people outside of the country,” the Electronic Privacy Information Center (EPIC) said yesterday. “It’s a loophole that government agencies have increasingly exploited to surveil Americans without having to obtain permission from the court.”

In March, two Democrats and two Republicans opposed to the law’s broad spying authority introduced a bill to limit the government’s ability to obtain Americans’ private communications without a warrant. This week, lawmakers failed to pass even a short-term extension of FISA amid disputes over proposed surveillance reforms and President Trump choosing Bill Pulte as acting director of national intelligence. Pulte has no experience in national security; he previously led the Federal Housing Finance Agency and used the post to accuse Trump critics of mortgage fraud.

While some Republicans have sought reforms of FISA, House Majority Leader Steve Scalise (R-La.) told Politico that “anybody who votes ‘no’ is casting a dangerous vote to put American lives at risk.”

Arguments that surveillance efforts could suffer from the law’s expiration even before March 2027 require some speculation. As NPR writes, electronic communications service providers “will still be legally required to turn over material to intelligence agencies. Still, some lawmakers worry that the companies compelled to turn over communications may attempt to challenge the law in court, possibly leading to an indeterminately long window during which they stop providing intel.”

FISA not the only US spying authority

House members left for a recess after yesterday’s attempts to extend the law. No further House votes are expected until June 23. While there’s plenty of time between now and March 2027 to finalize a FISA extension, the Electronic Frontier Foundation points out that the government has other spying authority it can use even if no deal is struck.

“If Section 702 does stay expired past March 2027, the United States government will likely revert to using other programs and authorities to justify the surveillance of overseas national security targets, namely 12333, a shadowy executive order from the 1980s that gives the US government nearly unlimited power to spy on people overseas,” the EFF said.

Executive Order 12333 isn’t merely an alternative spying power, wrote Eddington, who focuses on homeland security and civil liberties at the Cato Institute. The order accounts for more intelligence than Section 702, he wrote.

“The overwhelming bulk of overseas signals intelligence never depended on Section 702 in the first place,” Eddington wrote. “It runs under Executive Order 12333, the daily operating charter for the executive branch’s intelligence components, which requires no statute and no FISC order. A Title VII lapse removes not one 12333 collection platform.”