Will a FISA lapse cause a disaster? It depends on who you ask

Grumbling in the Senate over how – and when – to reauthorize the nation’s warrantless surveillance powers is renewing questions over whether the foreign spy program may be plunged into a legal gray area.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire April 19, igniting a rush for those concerned about a lapse in the law that authorizes the government to spy on foreigners located abroad.

But many of those pushing for reforms for Section 702 don’t share their concerns on timing, suggesting it's better to let the spy tool expire if it affords them more time to tinker with the law.

The stakes of doing so depend on who you ask.

“We will go blind on April 20th,” House Intelligence Chair Mike Turner (R-Ohio) told reporters last week, a few days before the chamber approved the bill reauthorizing FISA 702 that is now being mulled by the Senate.

Others have suggested FISA’s expiration is little more than another date on the calendar.

“I’m not concerned with the date,” Sen. Rand Paul (R-Ky.), a FISA critic, said of the looming deadline. 

“If all else fails, I think we can live under the Constitution maybe for a day, maybe two days.”

Senate Majority Leader Chuck Schumer (D-N.Y.) on Tuesday filed cloture on a motion to proceed on the House’s FISA package, a first step to taking up the bill.

But FISA 702 has hit numerous roadblocks to reauthorization, pushing Congress to pass a short-term extension in December that sidestepped its end of the year expiration, punting the battle to April.

Sen. Ron Wyden (D-Ore.), concerned the privacy of U.S. citizens will be infringed upon by the program, has pledged “to do everything in my power to stop it from passing in the Senate” unless additional reforms are added to protect Americans whose communications with foreign targets are swept up during surveillance.

The bill does include reforms to the 702 process, including a drastic winnowing of who can approve queries involving U.S. persons. It also requires an after-the-fact review of those searches. But it doesn’t include the warrant requirement many privacy hawks championed and some are hoping to strip other measures added from the House bill. 

The confusion over FISA 702’s future stems in part from dueling approvals of the program.

While the congressional authority underlying the law will expire April 19, the Foreign Intelligence Surveillance Court recently recertified the program for another year, with that certification set to lapse in April of 2025.

“If the government has obtained renewal of the certifications, even if the law is not reauthorized this month, those certifications remain in effect over the course of the year,” said Carrie Cordero, a former attorney with the Office of the Director of National Intelligence, who has advocated for reauthorizing FISA 702.

“The government should be able to add new targets but there's some element of uncertainty that potentially that could be challenged and it’s not good from a national security perspective to have any ambiguity about the legal authority that’s in place,” she said.

The government has asserted those concerns are not just theoretical.

To national security leaders, having one and not the other would open the door to resistance from tech companies like Google and cell phone providers who have been asked to aid in the surveillance of foreign targets.

“We know from experience going back to 2008, when there is a lapse in the underlying authority, it introduces a degree of uncertainty that leads to noncompliance. It leads to litigation. It leads to a reduction in overall collection,” a senior administration official told reporters earlier this month.

The official was referring to the lapse in a precursor to FISA 702, one that both the attorney general and director of national intelligence (DNI) said at the time had real impacts.

“We have lost intelligence information this past week as a direct result of the uncertainty created by Congress’s failure to act,” then-Attorney General Michael Mukasey and then-DNI Director J.M. McConnell wrote on the sixth day after the law expired.

Not everyone agrees the situation would be so dire.

Elizabeth Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program, accused the government of over inflating the risk that could stem from possible challenges.

“The government still says that it would be a tragedy if Section 702 were to lapse because some of the companies that are ordered to turn over communications to the government might file lawsuits, essentially might resist and try to get the FISA court to quash the order and there would be litigation. So the government is saying this would be an absolute disaster because it would have to go to court,” she told The Hill.

“The fact that it's going to have to litigate is hardly a reason to rush to enact legislation” without taking the time to consider more stringent reforms, she added.

But Cordero warned a long-term lapse that stretched beyond the court’s April 2025 certification, while not stopping surveillance, would limit its oversight. In effect, opponents of the program would see a worse situation.

“The long-term scenario of not reauthorizing 702, whether it's under this administration, or an unknown future administration, would be that a president would be forced to rely on constitutional authority. And there wouldn't be a legal framework anymore with all of these procedures and process and court supervision. It instead would be executive branch prerogatives,” she said.

“And I don't think that that's the world that the civil libertarians who are concerned about surveillance really want to live in.”

Section 702 wouldn’t be the only provision called into question by a long-term lapse either. Other sections of the law that provide protections for how Americans can be surveilled when they are abroad would also expire, and those programs’ court certifications lapse ahead of those for Section 702.

“Sections 703, 704, 705 make sure that foreign intelligence surveillance of an American who is outside the United States, has to take place pursuant to a probable cause order issued by the FISA court. So these are very important protections for Americans and no one wants to see them expire,” Goitein said.

Questions over what would happen to the legal footing of the program amid a lapse have circled for months as Congress has been repeatedly unable to agree on a path forward for reforming the law. 

Now, with just days to go in the Senate, some in the upper chamber have pledged to push for their own priorities.

Wyden was upset to see the House – after the bill was temporarily blocked by 19 GOP members – only reauthorize FISA for two years. He’s also opposed to a measure pushed by the House Intelligence Committee that shifted the definition of who must aid in FISA 702 surveillance.

“The FISA court, as you know, provided this additional burst of time to get this matter resolved,” he said Tuesday.

“I’d rather get this done right.”

Sen. Marco Rubio (R-Fla.), the top Republican on the Senate Intelligence Committee, cautioned that a short lapse in 702 authorities may not have a big impact.

“I don't think a one or two-day delay to get this thing passed is going to be meaningful and catastrophic. The key is to get it done,” he said.

But Senate Intelligence Chair Mark Warner (D-Va.) chastised colleagues who suggested negotiating the bill beyond FISA 702’s April 19th authorization.

“Anyone thinking America going dark at this point [is OK] is making a huge mistake,” he said.

Alexander Bolton contributed.