Section 702 of the Foreign Intelligence Surveillance Act expired at midnight Friday after Congress failed to reauthorize the surveillance law, leaving a central national security tool in legal limbo following months of short-term extensions and partisan disagreement over the appointment of Bill Pulte as acting director of national intelligence.
The provision, first enacted in 2008, permits U.S. intelligence agencies to collect texts and emails sent to and from foreign nationals living outside the United States without a warrant. The law has long been the subject of a fraught debate over the balance of civil liberties and national security — a debate that Jason Pye, vice president of the Due Process Institute, said predates the current Congress and administration. “If Bill Pulte had never become part of the conversation, many of the underlying concerns about Section 702 would still exist,” Pye said.
Privacy advocates said the statutory lapse does not immediately halt intelligence operations. Surveillance under Section 702 continues through annual certifications approved by the Foreign Intelligence Surveillance Court, which remain valid through March 2027. “It’s time to let these reform bills have a chance,” said Jake Laperruque, deputy director of the security and surveillance project at the Center for Democracy and Technology.
House Speaker Mike Johnson, a Louisiana Republican, accused Democrats of blocking the renewal over the controversy surrounding Trump’s decision to install Pulte, head of the Federal Housing Finance Agency, as acting DNI. Trump has since nominated Jay Carney to take the role on a permanent basis.
“It is shameful, and it is very, very dangerous,” Johnson told reporters after a failed House vote on Thursday. “We did everything in our power to try to ensure that this statute does not expire.”
The House has left Washington and is scheduled to return on June 23 — two weeks after the surveillance program’s deadline. Laperruque said Johnson’s willingness to send lawmakers home without resolving the FISA issue suggests the national security risk is not as imminent as Johnson has claimed. “They would not be flying off to go home if they actually thought it was a real threat,” Laperruque said.
Intelligence agencies have argued that Section 702 is necessary to prevent terrorist attacks. Privacy advocates say the law allows the government to collect U.S. citizens’ communications without a warrant through a loophole where an American is communicating with a foreign target outside the United States, a practice they describe as unconstitutional.
During the 2024 congressional session, lawmakers voted on an amendment that would have required a warrant to surveil Americans’ communications in the Section 702 program; it failed in a 212-212 tie. Privacy advocates said they believe they now have the votes for a warrant requirement, based on private conversations with lawmakers who have changed their positions and on new members of Congress who have taken office since the 2024 election.