A warrantless wiretap law is about to expire — but surveillance networks aren’t actually ‘going dark’

Congress has failed to pass a three-week extension of Section 702 of the Foreign Intelligence Surveillance Act (FISA), with the House voting 218-198 against reauthorizing the controversial warrantless wiretapping authority through July 2nd. After a short-term extension earlier this year, the spying program now appears set to lapse for at least a week. This is the nightmare scenario FISA’s proponents have been warning about — but it doesn’t actually mean the US has lost its surveillance capabilities.

Proponents of a clean extension claim a lapse will hinder intelligence agencies’ efforts to thwart potential terrorist attacks, with surveillance networks “going dark”. Sen. Tom Cotton (R-AR) stressed the importance of reauthorizing Section 702 ahead of the World Cup. House Speaker Mike Johnson (R-LA) has said even a brief lapse would be disastrous. “Democrats in the Senate are playing political games right now with the lives of Americans,” he told reporters Wednesday. “It’s a very dangerous situation.”

In March, the FISA court recertified surveillance under Section 702 until 2027. The Brennan Center for Justice notes that a lapse won’t allow telecom companies to flout requests to hand over communications information to the NSA and other spy agencies. In 2008, after Yahoo failed to comply with a Section 702 request during a lapse, the FISA court ruled that the directives issued under Section 702 are effective while the certification is in place — even in the event of a lapse.

“The phrase ‘going dark’ is significantly misleading,” Andrea Sawka Fiegl, the senior policy director for media and technology at Common Cause, said on a Tuesday press call. Fiegl added that companies don’t choose whether they participate in surveillance under Section 702. If they don’t comply after being served with a directive, they face fines starting at $250,000 a day.

“The ‘going dark’ framing is basically a pressure tactic designed to strip Congress of its leverage to negotiate reforms by creating this false binary,” Fiegl said. “There is ample time for Congress to consider and pass reforms.”

Among those reforms are a warrant requirement for queries involving US persons, including so-called “backdoor searches” in which intelligence agencies identify a foreign target with ties to a US person, and then search that person’s communications, thus granting them access to their desired US target. Reformers also want to prohibit intelligence agencies from buying Americans’ data from private brokers to get around warrant requirements.

“Every day that Section 702 is in effect without reforms is a day that Americans’ rights are under threat,” Sen. Ron Wyden (D-OR) said in a statement Wednesday night, after Senate Republicans blocked his request for a five-week extension of Section 702 with new transparency requirements. “If there is going to be an extension of these authorities, there needs to be some guardrails or at least some transparency that would allow Congress and the American people to understand the abuses that have taken place and the need for reforms.”

Though President Donald Trump and Republican leaders in both chambers have called for a clean reauthorization of Section 702, there’s bipartisan appetite for reform — and a handful of Republican holdouts stand in the way of a clean reauthorization. Most Democrats — even some who have supported reauthorization in the past — have objected to a clean extension due to Trump’s appointment of Bill Pulte as acting director of national intelligence.