The nation\'s warrantless spy powers expired at midnight Thursday after both chambers of Congress failed to pass bills to extend Section 702 of the Foreign Intelligence Surveillance Act through July 2, plunging the country into what lawmakers are calling uncharted legal territory.
FISA 702 allows the government to compel communications companies to turn over records of foreign targets without a warrant, creating a database used to monitor potential threats. The expiration leaves unclear whether cellphone providers and email services will continue complying with new surveillance requests or whether the program can function under existing Foreign Intelligence Surveillance Court certifications.
President Trump said Thursday he would consider drafting an executive order to shore up the program, though legal experts and Republicans alike have questioned whether such a move could reinforce the program\'s legality. The House is on recess through June 23, meaning Congress will not return to address the lapse until then at the earliest.
What the Right Is Saying
Republicans acknowledged the gravity of the lapse while questioning whether electronic service providers will continue cooperating without indemnification protections written into statute. House Intelligence Committee Chair Rick Crawford (R-Ark.) expressed uncertainty about executive order authority. "We\'re going into uncharted water, so I\'m not sure what can be done with an EO. We\'ll find out," he said.
Sen. Mike Rounds (R-S.D.), a member of the Senate Intelligence Committee, questioned why telecom companies would take on legal risk without statutory protection. "Why would they do it on their own and then get their butt sued by trial attorneys?" he asked. "This is a law which expires, and I don\'t know whether or not a court would accept what an executive order would do, but I know it puts this in jeopardy."
Some Republicans were less concerned about the lapse. Sen. Josh Hawley (R-Mo.), who previously blocked Senate-negotiated three-year FISA 702 reauthorization over concerns about Americans\' data protections, offered a different view. "Before FISA, the intelligence community did much of what they\'re doing now, and I don\'t know how consequential FISA is, to be honest with you," he said.
What the Left Is Saying
House Democrats blocked FISA 702 reauthorization over objections to Bill Pulte being tapped to lead the Office of the Director of National Intelligence, pointing to his history of using his role at the Federal Housing Finance Agency to make criminal referrals against political opponents. While Trump has since nominated U.S. Attorney Jay Clayton for the ODNI position, Pulte remains slated to serve as acting director of intelligence on June 19.
Sen. Mark Warner (D-Va.), the top Democrat on the Senate Intelligence Committee, expressed exasperation with the situation. "The idea that somebody without a security clearance, who has not even been able to keep mortgage information confidential, is going to get keys to the whole intelligence community," he said. Warner had negotiated a bipartisan extension plan and said there were multiple opportunities for the White House to engage constructively. "There have been a half dozen exit ramps for the White House on this problem. They have chosen not to take them."
Rep. Jamie Raskin (D-Md.), the top Democrat on the House Judiciary Committee, rejected the idea that an executive order could substitute for legislation. "Executive unilateral usurpation is not a substitute for proper legislation," he said, adding that he would like to see warrant requirements added to Section 702.
What the Numbers Show
The Foreign Intelligence Surveillance Court certified the program in March, meaning some surveillance activities may continue under existing court authority. However, legal experts disagree on whether certification alone can sustain the program without congressional authorization.
In 2024, when a Section 702 lapse appeared imminent, major communications providers warned they would stop participating at expiration, according to Warner. The same liability concerns that prompted those warnings remain unresolved.
FISA supporters warn the timing is particularly concerning given upcoming high-profile events including World Cup competitions and the nation\'s 250th anniversary celebrations, as well as ongoing tensions with Iran that intelligence officials fear could motivate terrorist activity.
The Bottom Line
The lapse creates immediate uncertainty about whether the government can grow its surveillance database with new intelligence on foreign targets. Crawford described the situation: "It\'s going to be hard to continue to grow that database under these constraints, and so it\'s not going to give us an accurate real-time picture of what\'s going on. It\'s a look back, not a look ahead."
Whether the program can function without congressional reauthorization remains untested. Rep. Jim Himes (D-Conn.), the top Democrat on the House Intelligence Committee, noted that if a company sues over the government\'s continued surveillance, "we just don\'t know how the FISC is going to rule." The Senate Intelligence Committee has scheduled a Wednesday meeting to consider Clayton\'s nomination, and Senate Majority Leader John Thune (R-S.D.) has said he plans to move swiftly on confirmation.