A powerful US surveillance law is set to expire – what happens now? | US politics
Donald Trump’s bid to install a controversial ally as the nation’s leading intelligence official has shed light on the broad reach of a powerful surveillance law and raised questions about its future.
Privacy advocates say that regardless of who the U.S. president appoints as director of national intelligence (DNI), it deserves scrutiny and reform.
A key provision of the Foreign Intelligence Surveillance Act (FISA) will expire Friday night amid backlash over Trump’s announcement that Bill Pulte, the head of the Federal Housing Finance Agency and a major Republican donor, would appoint acting DNI.
While Trump has moved to contain the anger — announcing that he has nominated another senior official, Jay Carney, to fill the post permanently — the U.S. Congress has so far failed to extend Fisa Section 702 through Friday.
While the Pulte controversy has thrust Fisa back into the spotlight, the programme’s balance between civil liberties and national security has been the subject of worrying debate in recent months and years.
“If Bill Pulte had never been part of the conversation, many — if not all — of the core concerns about Section 702 would still exist,” said Jason Pye, vice president of the Due Process Institute, a bipartisan nonprofit focused largely on criminal justice. “These discussions did not begin in this Congress, nor did they begin with this administration.”
Section 702, first enacted in 2008, allows national security agencies to collect and review texts and emails sent to and from aliens living outside the United States without a warrant. If an American is talking to a non-American target living abroad, their communications may also be cut off.
Privacy advocates say the law is intended to spy on foreigners outside the United States, but the federal government is using the loophole to spy on Americans without permission, an unconstitutional practice. Intelligence agencies say they need these surveillance powers to prevent terrorist attacks.
This year, Congress was only able to pass short-term reauthorizations of the section 702 program. Trump and Republican leaders in the House of Representatives tried unsuccessfully to push through longer extensions that did not include the key reforms demanded by a broad coalition that includes progressive Democrats and far-right Republicans.
In late April, after negotiations failed to lead to a longer renewal, Congress set the original section 702 expiration date as June 12.
“We’ve reached a point where we’re kicking the can down the road and trying the same status quo approach over and over again,” said Jake Laperruque, deputy director of the security and surveillance project at the Center for Democracy and Technology. “It’s time to give these reform bills a chance.”
House Republican leadership has refused to allow a vote on requiring warrants to spy on Americans’ communications, closing the door on the most important change sought by opposition lawmakers and privacy advocates. They, too, accuse House Speaker Mike Johnson of blocking repeated attempts to expand the program by taking a “my way or the highway approach.”
There appears to be an appetite for warrant requirements. In 2024, lawmakers voted on an amendment that included an amendment, but it failed after a dramatic 212-212 tie. Privacy advocates say they’re confident they now have the votes for a consent requirement, based on conversations with switching lawmakers and new members of Congress.
Government oversight under Section 702 could continue through March 2027 as it is conducted through year-round certifications approved by a special federal court.
Some lawmakers are concerned about a legal statute of limitations and the program “going dark” — and the Trump administration has accused Democrats of playing politics with national security by blocking the program’s renewal because of Pulte’s appointment. But privacy advocates say this is a scare tactic, as all existing certifications and directives remain valid.
“This is disgraceful and very, very dangerous,” a furious Johnson told reporters after Thursday’s failed House vote. “We have done everything we can to ensure that this charter does not expire,” he claimed.
The council has left the city and is scheduled to return on June 23, two weeks after the surveillance program’s deadline.
Laperruque, of the Center for Democracy and Technology, said Johnson’s desire to repatriate MPs this week without resolving the Fisa issue was evidence that the consequences for national security were not as dire as he suggested. “If they really thought this was a real threat, they wouldn’t have flown away to go home,” he said.
