FISA Section 702 Lapses After Congress Fails to Renew Surveillance Powers

Section 702 of the Foreign Intelligence Surveillance Act (FISA) expired at midnight Friday after Congress and the White House failed to reach a deal to renew the controversial spy program—the first lapse since the law was enacted in 2008. The statute authorizes U.S. intelligence agencies, including the NSA and FBI, to collect without a warrant the digital communications of non-Americans located abroad, a capability central to counterterrorism and counterintelligence operations but long criticized by civil liberties groups for incidental collection on U.S. persons.

The collapse followed weeks of bipartisan negotiations and a chaotic personnel shake-up. President Donald Trump blindsided lawmakers last week by installing Bill Pulte, a federal housing official with no military or intelligence background, as acting director of national intelligence—a move that infuriated Democrats and unsettled Republicans. The House fell short Thursday on a short-term extension before members departed for recess until June 23, and the Senate similarly failed to fast-track a renewal. Trump subsequently nominated Jay Clayton, a former Securities and Exchange Commission chair and current New York federal district judge, as the permanent DNI, with a confirmation hearing scheduled for next week. Senate Intelligence Committee ranking member Mark Warner (D-VA) welcomed the pick but insisted Sen. John Thune (R-SD) must guarantee Pulte will not serve as acting DNI in the interim.

Although Section 702 has technically expired, the program will not shut down entirely. In March, the Foreign Intelligence Surveillance Court (FISA Court) authorized continuation of existing certifications for another year, meaning current 702 orders remain valid but the government cannot issue new ones—an interpretation likely to face legal challenges. A pivotal question is whether major U.S. communications providers, including AT&T and Verizon, will continue honoring outstanding 702 directives without statutory indemnification. Warner, a former telecom executive, warned reporters that losing liability protections would push carriers to withdraw cooperation, a scenario intelligence officials have worked for years to avoid. For users concerned about government access to their metadata and traffic, running a DNS leak test can help confirm whether queries are being routed through vulnerable resolvers, while a browser fingerprint test reveals how uniquely identifiable your device appears to passive surveillance systems. Lawmakers now face a narrow window when they return from recess to restore the authority before existing court approvals lapse or telecom compliance erodes.