The immediate effect of allowing Section 702 of the Foreign Intelligence Surveillance Act (FISA) to expire would be limited. That’s because a judge on the Foreign Intelligence Surveillance Court renewed the government’s surveillance certifications in March, allowing intelligence agencies to continue using the authority until March 2027.
Critics, however, contend that the warnings overstate the immediate risk and obscure the reason the law has become so politically contentious: Section 702 is aimed at foreign targets abroad, but it has been used to search Americans’ communications collected in the course of that surveillance.
“In other words, it covers everything from sanctions evaders, to narco-terrorists, to ISIS terrorists, to what Iran might be up to, North Korea, etc,” he says during a phone interview. “So it's probably the critical national security tool. So if it lapses, it stands to reason that we'd be worried about what we're missing.”
“[Companies] want to make sure that they're not going to get sued if they go ahead and comply with a court order,” he explains. “The question is, what are we going to be missing in that period of time—during the time of litigation, whether it's three days or six weeks … it only takes one small piece of information about a terrorist plot or a sanctions evader or a North Korean missile to have a potentially profound effect on national security.”
Secretary of State Rubio and Defense Secretary Pete Hegseth urged Democrats on Monday to support an extension, with Rubio warning that allowing the spy powers to lapse would be “devastating to our national security.”
“Letting 702 lapse is a real gamble that we can’t afford to take,” Grassley said while speaking on the Senate floor on Monday. “Let’s be very clear: if Section 702 lapses, our adversaries will benefit greatly, and Americans will suffer.”
“The Administration strongly supports full reauthorization to allow us to gather foreign intelligence, and protects our country from malign actors,” the official added.
"We cannot afford to let our Intelligence Community lose this tool that helps keep our nation safe, even for a day,” the group wrote in April.
Why lawmakers want Section 702 reformed
The current process for FBI searches of Section 702 data using U.S.-person query terms requires internal approval, and two rounds of internal audits would follow, according to a watchdog report. Although Section 702 prohibits direct spying on Americans, some communications between U.S. citizens and foreigners will be incidentally collected, which the FBI is allowed to retain and later look into. Some lawmakers have argued that the internal signoffs are not enough to place a check on the executive branch’s power.
“Congress should not give Donald Trump, Stephen Miller, and Kash Patel unchecked power to spy on Americans,” said Democratic Sen. Dick Durbin of Illinois in April about the President, the White House deputy chief of staff, and FBI director, further accusing the government of using Section 702 “as a back door for warrantless spying on Americans here at home.”
“At a time when our democracy is under tremendous threat, we owe it to our constituents to have a real, open debate about surveillance authorities that directly affect both their security and their fundamental freedoms,” he wrote. “And we should not exclude Americans from that debate.”
“No government official should have warrantless access to Americans' private communications,” she argues. “The potential for abuse is simply too great.”
-Philip Wang contributed reporting.
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