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In March, two Democrats and two Republicans opposed to the law’s broad spying authority introduced a bill to limit the government’s ability to obtain Americans’ private communications without a warrant. This week, lawmakers failed to pass even a short-term extension of FISA amid disputes over proposed surveillance reforms and President Trump choosing Bill Pulte as acting director of national intelligence. Pulte has no experience in national security; he previously led the Federal Housing Finance Agency and used the post to accuse Trump critics of mortgage fraud.
While some Republicans have sought reforms of FISA, House Majority Leader Steve Scalise (R-La.) told Politico that “anybody who votes ‘no’ is casting a dangerous vote to put American lives at risk.”
Arguments that surveillance efforts could suffer from the law’s expiration even before March 2027 require some speculation. As NPR writes, electronic communications service providers “will still be legally required to turn over material to intelligence agencies. Still, some lawmakers worry that the companies compelled to turn over communications may attempt to challenge the law in court, possibly leading to an indeterminately long window during which they stop providing intel.”
FISA not the only US spying authority
House members left for a recess after yesterday’s attempts to extend the law. No further House votes are expected until June 23. While there’s plenty of time between now and March 2027 to finalize a FISA extension, the Electronic Frontier Foundation points out that the government has other spying authority it can use even if no deal is struck.
“If Section 702 does stay expired past March 2027, the United States government will likely revert to using other programs and authorities to justify the surveillance of overseas national security targets, namely 12333, a shadowy executive order from the 1980s that gives the US government nearly unlimited power to spy on people overseas,” the EFF said.
Executive Order 12333 isn’t merely an alternative spying power, wrote Eddington, who focuses on homeland security and civil liberties at the Cato Institute. The order accounts for more intelligence than Section 702, he wrote.
“The overwhelming bulk of overseas signals intelligence never depended on Section 702 in the first place,” Eddington wrote. “It runs under Executive Order 12333, the daily operating charter for the executive branch’s intelligence components, which requires no statute and no FISC order. A Title VII lapse removes not one 12333 collection platform.”
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