FISA 702 lapse plunges US into unknown territory

The unprecedented expiration of the nation’s warrantless spy powers has plunged the country into legal uncertainty over the extent to which it can surveil foreigners located abroad. 

Both chambers of Congress on Thursday failed to pass bills to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) through July 2 amid outrage from Democrats about Bill Pulte being tapped to lead the intelligence community. 

Each then left town, allowing the spy powers to lapse after they expired at midnight. 

President Trump is also mulling signing an executive order seeking to shore up the program.

Both actions leave the country in a new gray area, left to wonder whether cellphone companies and email providers will continue to comply with any new requests for communications.

“It’s unprecedented, uncharted territory. We’ve never been here before,” said Rep. Brian Fitzpatrick (R-Pa.), one of the only lawmakers to have queried the 702 database as a former FBI agent.

“I think there’s a lot to unpack legally, though. I mean, it’s really a question for the phone companies, right, because they’re the ones that are going to be deciding whether or not to share this information with the government.”

FISA 702 allows the government to compel communications companies to turn over the records of foreign targets without a warrant, creating a database used to monitor potential threats. 

Privacy hawks have long argued that the spy program doesn’t truly expire if congressional authorization lapses. The program was recertified by the Foreign Surveillance Intelligence Court (FISC) in March, and they contend the program can largely continue functioning under that authority. 

But FISA backers say that take is legally dubious, as Congress must still authorize and set guidelines for the program. They also fear electronic service providers would refuse to comply if they aren’t indemnified — a threat those companies made in 2024 when FISA was last reauthorized and a Section 702 lapse appeared imminent.

“There is this theory out there, and it’s been out there for a long time, that the program can survive simply on certification. We’ve never tested that theory, and I’ve........

© The Hill