WASHINGTON — A critical intelligence-gathering program that officials say helps prevent terrorist attacks and catch foreign spies has expired after lawmakers in Congress were unable to agree on extending it.
The program, called Section 702, faced a Friday deadline that came and went as both political parties failed to find common ground on a temporary extension. President Donald Trump has now selected a new national intelligence director that both Republicans and Democrats find more acceptable than his first choice, but it remains uncertain when Congress — preparing for recess — might be able to restart the intelligence program.
However, there may not be an immediate impact since a court ruling from March allowed these government surveillance authorities to continue operating for an additional year.
This provision falls under the Foreign Intelligence Surveillance Act, or FISA, and gives U.S. intelligence agencies broad authority to gather and review communications from foreign nationals outside American borders without obtaining a warrant first.
Government officials view this legislation as an essential national security resource that has helped prevent terrorist plots, provided important information about ransomware attacks on vital infrastructure, and played a role in the 2022 drone strike that killed al-Qaida leader Ayman al-Zawahri.
The legislation became law in 2008 to formalize important elements of an earlier intelligence program established under President George W. Bush’s Republican administration.
Ever since, government leaders from both major political parties have cautioned that losing this law would prevent the government from gathering essential intelligence from overseas.
The regular requirement to renew this law has created lengthy congressional debates long before this year, including discussions about whether more safeguards are necessary to protect Americans’ privacy and personal information.
This concern exists because when the government monitors foreigners overseas, it also captures communications from American citizens and others in the U.S. who communicate with those under surveillance.
Privacy rights groups have expressed alarm over reports that FBI analysts have repeatedly misused the extensive intelligence database collected through this program to search for information about Americans, including matters related to the Jan. 6, 2021, Capitol riot by Trump supporters and the 2020 racial justice protests, as well as state and federal political leaders.
Some advocates argue the government should need a warrant before reviewing communications involving Americans. Government officials counter that warrants would be legally unneeded and too burdensome, and that reforms have been put in place to reduce improper searches.
The debate has created unusual political partnerships, bringing together lawmakers skeptical of government surveillance from both privacy-focused liberal Democrats and Republicans who remain suspicious of intelligence agencies following the investigation into connections between Russia and Trump’s 2016 presidential campaign.
Democrats objected when Trump chose Bill Pulte as acting national intelligence director and refused to back a FISA extension until that nomination was withdrawn. Pulte, a Trump supporter without apparent national security background, raised concerns by using his position as director of the Federal Housing Finance Agency to pursue questionable mortgage fraud investigations targeting perceived Trump opponents.
A House vote this week that would have temporarily continued the program failed, with 19 Republicans and almost all Democrats voting against the temporary measure, 198-218. A Senate attempt to pass its own version also collapsed.
Following those votes, Trump announced he was selecting Jay Clayton, a U.S. attorney in Manhattan who formerly led the Securities and Exchange Commission, as his permanent choice for director of national intelligence, or DNI. The selection received positive reactions on Capitol Hill, but it wasn’t sufficient to resolve the standoff before Friday’s expiration.
Connecticut Rep. Jim Himes, the leading Democrat on the House Intelligence Committee, said that he has “known and respected” Clayton for decades and that if he had been chosen a week earlier, “lots of pain might have been avoided.”
“His intelligence, temperament and deep commitment to public service will make him a terrific DNI,” Himes said.
Republican Arkansas Sen. Tom Cotton, chairman of the Senate Intelligence Committee, and Iowa Sen. Chuck Grassley, chairman of the Senate Judiciary Committee, have cautioned the Trump administration to prepare “for a potential significant gap in foreign intelligence collection.”
This expiration is likely the first substantial lapse of Section 702 since its creation over 15 years ago. In 2024, the Senate narrowly missed its midnight deadline before voting to pass a bill that President Joe Biden, a Democrat, then signed, creating a short interruption.
Despite the lapse, there’s no expectation of any immediate reduction in intelligence gathering as the U.S. prepares to host several events this summer with potential national security implications, including the World Cup and celebrations for the 250th anniversary of the United States.
A March ruling from the secretive Foreign Intelligence Surveillance Court approved the program’s continuation for another year, meaning Section 702’s authority should remain active for months.
Still, it’s possible that without congressional reauthorization, a telecommunications company or internet service provider could contest the government’s authority to force cooperation with surveillance requests.
