Section 702 of FISA set to expire tonight, but current certification remains valid until March 2027.
Title VII of the Foreign Intelligence Surveillance Act (FISA) is scheduled to expire at midnight this evening after Congress did not approve a renewal of the contentious surveillance law. However, this does not mean the government's surveillance capabilities will vanish.
Surveillance conducted 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 noted this week. The existing certification, issued by the Foreign Intelligence Surveillance Court on March 17, 2026, will remain in effect until March 2027 as part of the annual certification process.
"To pressure members into accepting a bill lacking meaningful reforms, surveillance proponents are asserting that Section 702 surveillance will 'go dark' on June 12 if Congress fails to renew the law," the Brennan Center stated. "Contrary to that assertion, Congress anticipated potential lapses and explicitly clarified that Section 702 surveillance may proceed under existing certifications even if the statute expires. Members must not be intimidated into approving a reauthorization without safeguarding Americans from warrantless government access to their private communications."
The Cato Institute agrees, with senior fellow Patrick Eddington writing that "Section 702 operates under annual programmatic certifications approved by the Foreign Intelligence Surveillance Court (FISC), along with the directives provided to providers under them. According to the FISA Amendments Act's transition provision, acquisitions authorized by certifications and directives in effect at the time of sunset may continue until those certifications expire."
Rep. Jamie Raskin (D-Md.) stated that "government surveillance activities will continue unchanged" after Friday, as reported by CBS News. "Everything that has 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' communications captured under FISA surveillance
Title VII, including Section 702, was incorporated into the FISA law in 2008. It was most recently reauthorized in 2024 when President Biden signed a bill to extend and broaden warrantless surveillance under Section 702.
"FISA Section 702 permits US intelligence agencies to monitor foreign targets without a warrant, but the practice frequently captures the communications of Americans who are in contact with individuals outside the country," the Electronic Privacy Information Center (EPIC) stated yesterday. "This is a loophole that government agencies have increasingly used to surveil Americans without needing court approval."
In March, two Democrats and two Republicans opposed to the law's extensive surveillance authority introduced a bill to restrict the government's ability to obtain Americans' private communications without a warrant. This week, lawmakers failed to pass even a temporary extension of FISA amid disagreements over proposed surveillance reforms and President Trump's appointment of Bill Pulte as acting director of national intelligence. Pulte has no background in national security; he previously headed the Federal Housing Finance Agency and used that role to accuse Trump critics of mortgage fraud.
While some Republicans have pushed for reforms to FISA, House Majority Leader Steve Scalise (R-La.) told Politico that "anyone who votes 'no' is casting a dangerous vote that puts American lives at risk."
Arguments that surveillance efforts could be hindered by the law's expiration even before March 2027 involve some speculation. As NPR reports, electronic communications service providers "will still be legally required to provide material to intelligence agencies. However, some lawmakers worry that companies compelled to hand over communications might attempt to challenge the law in court, potentially creating an indefinite period during which they stop providing intelligence."
FISA not the sole US surveillance authority
House members departed for a recess following yesterday's unsuccessful attempts to extend the law. No further House votes are anticipated until June 23. While there is ample time between now and March 2027 to finalize a FISA extension, the Electronic Frontier Foundation highlights that the government has other surveillance authorities it can utilize even if no agreement is reached.
"If Section 702 does remain 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 secretive executive order from the 1980s that grants the US government nearly unlimited power to spy on people overseas," the EFF stated.
Executive Order 12333 is not merely an alternative surveillance authority, wrote Eddington, who specializes in homeland security and civil liberties at the Cato Institute. The order accounts for more intelligence than Section 702, he noted.
"The overwhelming majority of overseas signals intelligence never depended on Section 702 in the first place," Eddington wrote. "It operates under Executive Order 12333, the daily operational 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."