The expiration of Section 702 appears likely to continue for some time, due to political gridlock on Capitol Hill.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) officially expired on Friday, June 12, more than two weeks ago—with major consequences for the US intelligence community.

During its existence, the law gave significant latitude to the intelligence community to operate against foreign targets without the need for judicial oversight. Proponents have argued that its absence could create dangerous blind spots against foreign adversaries. Conversely, civil-liberties advocates have seen a rare opportunity to scale back a surveillance authority that has expanded and expanded, repeatedly sweeping up Americans’ communications without warrants. The debate now centers on a fundamental question over how to balance security with liberty. 

Why FISA Section 702 Has Been Controversial for Years

The broader FISA law was first passed by Congress in 1978, in the aftermath of the Watergate scandal. During the 1960s and early 1970s, few limitations existed on the collection of foreign intelligence on US soil. This made it easy for America’s intelligence agencies to operate inside the United States, but it also meant that the agencies could be misused for political ends. Indeed, the “smoking gun” tape that led to President Richard Nixon’s resignation in 1974 concerned an attempt to disguise the origin of Nixon’s aides’ break-in to the Democratic National Committee’s headquarters at the Watergate Hotel by labeling it as part of a CIA investigation.

FISA was created to ensure that domestic intelligence operations were performed ethically. As technology advanced, and world events such as the terrorist attacks of September 11, 2001 led to public pressure for greater security, the tools available under FISA authority expanded. Section 702, created in 2008, allowed for the intelligence community to collect data on non-US citizens believed to be residing outside the United States without the need for a warrant.

Since Section 702’s passage, officials have argued it is one of the most valuable tools for counterterrorism, counterintelligence, cyber defense, and monitoring foreign adversaries, and have claimed that the authority it provides has foiled dozens of terrorist attacks, both against the United States and third countries. The law’s defenders also highlight safeguards in it meant to prevent unethical data collection: it prohibits gathering data on non-citizens inside the United States, and also “reverse targeting,” or attempting to gather data on US citizens by spying on their contacts abroad. Moreover, understanding the seriousness of the law, it was created with a sunset clause, generally requiring reauthorization every two years.

The problem is that while Americans are not supposed to be directly targeted, communications involving Americans are frequently collected incidentally. Critics argue this has created a massive loophole around the Fourth Amendment. Indeed, the FBI has repeatedly searched 702 databases for information involving US persons without obtaining traditional warrants.

This problem is a bipartisan one. Under the first Trump administration, the FBI reportedly used the tool to indirectly gather information on Black Lives Matter protesters, while the Biden administration used it to surveil groups suspected of participation in the January 6 attack. Both of these instances were later determined to be improper in court. These “backdoor searches” have fueled years of bipartisan criticism, with both the libertarian right and progressive left expressing ire over the constitutional violations. 

How Has Section 702’s Expiration Affected US Spy Agencies?

To be clear, not all surveillance stopped overnight on June 12. Despite the law’s expiration, existing surveillance remains active because intelligence agencies secured annual certifications from the Foreign Intelligence Surveillance Court earlier this year and those certifications remain valid until roughly March 2027.

However, in the absence of Section 702, agencies can no longer simply expand their espionage programs indefinitely. New directives and future collection authorities now face significant legal uncertainty, with the intelligence community effectively operating on borrowed time.

Despite a core of bipartisan support for the law, the political will to quickly reauthorize the tool has collapsed on Capitol Hill. For years, lawmakers from both the left and right have argued that intelligence agencies have abused the system, and stressed that any renewal needed to include stronger protections for Americans and their Fourth Amendment rights. If the government wants to search communications involving Americans, the argument goes, it needs a warrant.

How a Trump Appointment Derailed 702 Reauthorization Efforts

The fight over Section 702 intensified after President Trump appointed Bill Pulte as Acting Director of National Intelligence—replacing former Hawaii congresswoman Tulsi Gabbard, who resigned in mid-June for personal reasons. Critics have argued that Pulte, who previously led the Federal Housing Finance Agency, lacks the necessary experience to oversee the US intelligence community. Indeed, as FHFA director, Pulte built a reputation as an attack dog, repeatedly opening investigations into Trump’s political opponents—leading to suspicion that he would pursue the same efforts as DNI, echoing the Nixon era.

Following the furor over Pulte’s nomination, Trump withdrew it in mid-June, proposing instead to nominate New York district attorney and former SEC chairman Jay Clayton to the position. However, Trump later insisted that Clayton’s confirmation could not take place until Congress separately approved the SAVE Act, a controversial election procedures bill.

With Clayton’s nomination effectively on hold, Pulte remains the interim DNI, and his presence in that office has triggered bipartisan resistance that helped stall reauthorization efforts. Under Pulte, the argument goes, American intelligence agencies should have as little power as possible, to prevent them from misusing it.

In spite of the Pulte affair, Congress will likely revisit the issue of Section 702 soon. Few lawmakers want to permanently eliminate a major intelligence capability; everyone understands that foreign-intelligence collection is necessary. Yet there is growing resistance to a renewal of the law unchanged.

How will the crisis end? The most likely outcome is a compromise reauthorization, with more oversight and more restrictions on domestic queries, potentially with warrant requirements for searches involving Americans. As such, the expiration of Section 702 is not the end of US foreign intelligence collection. It is, however, a rare moment when Congress is being forced to reconsider where the line between security and liberty should be drawn.   

About the Author: Harrison Kass

Harrison Kass is a writer and attorney focused on national security, technology, and political culture. His work has appeared in Tablet, City Journal, The Hill, The Spectator, and The Cipher Brief. He holds a JD from the University of Oregon and a master’s in Global & Joint Program Studies from NYU. More at harrisonkass.com.

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