Section 702 of FISA is set to expire Friday after Congress failed to renew it, raising urgent questions about what changes for intelligence collection and the companies required to turn over communications. Even as the statute lapses, court authorization can k
By the time Congress left Washington for a scheduled recess, the clock was already moving toward Friday—and toward a lapse in one of the U.S. government’s most consequential surveillance authorities.
Section 702 of the Foreign Intelligence Surveillance Act is about to expire. Each year. the provision authorizes American intelligence agencies to collect the electronic communications of hundreds of thousands of foreigners located outside of the United States. The government has said more than 60% of the president’s daily intelligence briefing relies on information collected under Section 702.
So the question isn’t just political. It’s practical: what happens when Section 702 runs out, and whether a gap—however temporary—can ripple through the intelligence system.
Under the law, intelligence collection does not necessarily stop when the statute lapses. Section 702 authorization is granted annually by a federal court. and the law allows collection to continue for the duration of the court’s authorization even if the statute lapses before the court’s next approval. That means electronic communications service providers are still legally required to turn over material to intelligence agencies during the court-authorized window.
Still, the anxiety among some lawmakers is tied to the one thing that could complicate that continuity: legal challenges. Some members worry that companies compelled to turn over communications may attempt to contest the authority in court. potentially creating an open-ended period in which they stop providing intelligence material. Advocates on all sides of the surveillance fight believe those challenges will ultimately fail. but those closely tied to the intelligence community say even a small pause carries risks—especially with major events ahead. including 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 administrations, said he does not see a lapse as a “sky-is-falling” moment. But he also argued Congress could have acted to remove uncertainty instead of managing it.
“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. framed the legal risk differently. She said the FISA statute is clear that companies must continue to comply with government collection requests even after the lapse. and she pointed to existing case law.
Goitein said the FISA court has 30 days to resolve this type of challenge. adding that the court has previously reviewed the statute. “I do not think it would take very long for the FISA court to compel compliance,” she said. She also said she believes the security risks of a lapse are limited. while urging that the law be updated with privacy and civil liberties reforms.
Companies that fail to comply face penalties of $250,000 per day.
The lapse is happening not because Section 702 lacks supporters in Congress, but because reform fights have repeatedly slowed renewal. Over nearly two decades, the provision has never been short on controversy. Each time it comes up. a bipartisan group of lawmakers has pressed for changes aimed at better protecting Americans’ privacy rights.
In collecting communications of foreign nationals targeted by the intelligence community. Americans’ information—including calls. texts and emails—can be swept up. Federal law enforcement can then query the FISA database for Americans’ information and review 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 have pushed for additional changes, including a warrant requirement before law enforcement can review Americans’ information. The fight over those reforms produced a series of short-term extensions earlier this year as lawmakers struggled to reach agreement.
In the weeks leading up to the June 12 expiration, it looked like a three-year extension with moderate reforms might finally be reachable—stopping short of a warrant requirement. There were signs of progress. Then, last week, President Trump nominated Bill Pulte.
Pulte, known as the director of the Federal Housing Finance Agency, has been described in the source as someone who uses his post and large social media audience to attack the president’s perceived foes. Trump nominated Pulte to serve as acting director of national intelligence.
The fallout was immediate. Democrats— including those aligned with the intelligence community—said they would not reauthorize Section 702 while Pulte was Trump’s pick, citing concerns that Pulte would weaponize FISA information and, more broadly, the U.S. intelligence apparatus.
In an interview with NPR’s Morning Edition, Sen. Mark Warner. the top Democrat on the chamber’s intelligence 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 worry. Senate Majority Leader John Thune, R-S.D., told reporters last week, “We don’t need a weaponized DNI.” “We need professionals there.” Sen. Tom Cotton, the top intelligence Republican, refused to weigh in on Pulte’s qualifications.
By Thursday, after both the House and Senate made a series of failed bids to extend Section 702, both chambers left town. The Senate is scheduled to return next week. The House is not scheduled to return until the week of June 22.
On Thursday afternoon, Trump announced a permanent nominee to serve as director of national intelligence: federal prosecutor Jay Clayton. When asked in the Oval Office if Pulte would still take the job on an acting basis, Trump said Pulte would “for a short while.” He did not say how long.
Taken together, the developments leave Congress facing a narrow legal question and a bigger political one: whether the statute’s expiration becomes a controlled administrative transition—or whether a court fight triggered by compliance pressure turns into delay.
For now. the law’s structure offers a safeguard—court authorization can keep collection going—while the political fight over leadership at the top of the intelligence chain has pushed renewal off schedule. With the House not returning until the week of June 22 and with Friday approaching. the system’s next step is less about what lawmakers want on paper than what they allow to happen in practice as the country waits for the statute’s deadline to pass.
Section 702 FISA Foreign Intelligence Surveillance Act Congress intelligence collection privacy reforms FISA court electronic communications service providers Jay Clayton Bill Pulte acting director of national intelligence Mark Warner Hakeem Jeffries John Thune Tom Cotton