Congress Lets Key Spy Tool Section 702 Lapse Amid Political Infighting

Congress is about to let a key spy tool, Section 702 of the Foreign Intelligence Surveillance Act, lapse.

Each year, the provision is used by American intelligence agencies to collect the electronic communications of hundreds of thousands of foreigners located outside of the United States.

The government says that more than 60% of the president's daily intelligence briefing relies on information collected under the authority.

What happens when it expires?

Intelligence collection will continue

Intelligence collection under FISA's Section 702 is authorized annually by a federal court — and the law allows for that collection to continue for the duration of the court's authorization, even if the law lapses before the court's next approval. That means companies — electronic communications service providers, in this context — 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.

Advocates on all sides of the surveillance fight believe those challenges are ultimately likely to fail, but those closely linked to the intelligence community emphasize that even a small pause comes with risks ahead of major events like America's 250th celebration and the World Cup.

Glenn Gerstell, who served as general counsel at the National Security Agency during the second Obama and first Trump administration, says he doesn't believe Section 702's lapse to be a sky-is-falling moment — but that Congress could have chosen to avoid any issues by passing an extension.

"I don't want to overhype this and say that the statute's lapse is a horrific risk. It clearly is not," Gerstell said. "But by the same token, I just want to emphasize that it is irresponsible to accept any risk in this area under circumstances where we can control the risk. We can make it zero."

Elizabeth Goitein, a privacy rights advocate and senior director of the Brennan Center's Liberty and National Security Program, says the FISA law is clear that companies must continue to comply with the government's collection requests even after lapse — and that existing case law means any challenges will be sorted quickly. Companies risk a fine of $250,000 per day by not complying.

"The FISA court, under the law, has 30 days to resolve this type of challenge," Goitein said, and because the court has previously reviewed the statute, "I do not think it would take very long for the FISA court to compel compliance."

Goitein said she feels the security risks of a lapse are limited and wants to see the law updated with key privacy and civil liberties reforms.

Why is Congress letting the law expire?

Section 702 has never been short on controversy. Each time the provision has come up for renewal over its nearly two-decade history, a bipartisan group of lawmakers has pushed for reforms to the program to better protect Americans' privacy rights.

In collecting the communications of foreign nationals targeted by the intelligence community, Americans' information — including calls, texts and emails — can also be swept up in the dragnet.

And federal law enforcement regularly queries the FISA database for Americans' information and reviews their content. Those reviews are subject to certain procedural and executive branch oversight measures but do not require intelligence agencies and agents to demonstrate probable cause of wrongdoing to a court.

Reform-minded members of Congress — pointing to a history of abuses — want to see additional changes to the program, including a warrant requirement before law enforcement can review Americans' information.

The fight over those reforms led to a series of short-term extensions to the law this year as lawmakers struggled to reach agreement.

In the weeks leading up to the June 12 expiration, it appeared there was movement toward a three-year extension with moderate reforms, though stopping short of a warrant requirement. While any deal was far from certain, there were signs of progress.

Then, things fell apart when, last week, President Trump nominated Bill Pulte to serve as acting director of national intelligence. As director of the Federal Housing Finance Agency, Pulte is known for leveraging his post and large social media audience to attack the president's perceived foes.

The fallout

Democrats — even those most closely aligned with the intelligence community — immediately decried the appointment and said they would not reauthorize Section 702 while Pulte was Trump's pick, over concerns that Pulte would weaponize FISA information as well as the rest of the U.S. intelligence apparatus.

In an interview with NPR's Morning Edition, Sen. Mark Warner, the top Democrat on the chamber's intel committee, said "he's extraordinarily unqualified, but the timing could also not be more of a mistake." Hakeem Jeffries, the top House Democrat, described Pulte as a "political hack" and "malignant clown."

Even Republican leaders expressed worries. "We don't need a weaponized DNI," Senate Majority Leader John Thune, R-S.D., told reporters last week. "We need professionals there." Sen. Tom Cotton, the top intel Republican, refused to weigh in on Pulte's qualifications.

At the end of this week, both the House and Senate made a series of failed bids to extend Section 702, then — on Thursday — left town. The Senate is back next week, while the House is not scheduled to return until the week of June 22.