GoKawiilTitle VII of the Foreign Intelligence Surveillance Act (FISA) is set to expire at midnight tonight after Congress failed to pass an extension of the controversial spying law. But that doesn’t mean the government’s spying powers will disappear.
Surveillance under Section 702 of FISA “operates under yearlong certifications approved by the FISA Court,” the Brennan Center for Justice at New York University School of Law explained this week. The current certification will remain in place until March 2027 under the yearlong certification issued by the Foreign Intelligence Surveillance Court on March 17, 2026.
“In order to pressure members to accept a bill without meaningful reforms, surveillance hawks are claiming that Section 702 surveillance will ‘go dark’ on June 12 if Congress hasn’t renewed the law,” the Brennan Center said. “Contrary to that claim, Congress planned for potential lapses and made very clear that Section 702 surveillance may continue under existing certifications even if the statute sunsets. Members must not be fearmongered into passing a reauthorization without protecting Americans from warrantless government access to their private communications.”
The Cato Institute concurs, with senior fellow Patrick Eddington writing that “Section 702 operates under annual programmatic certifications approved by the Foreign Intelligence Surveillance Court (FISC), together with the directives served on providers under them. Under the FISA Amendments Act’s transition provision, acquisitions authorized by certifications and directives in effect at the moment of sunset may continue until those certifications expire.”
Rep. Jamie Raskin (D-Md.) said that “government surveillance activities will continue unchanged” after Friday, according to CBS News. “Everything that’s already been authorized and certified is already in motion, and current FISA authorizations will continue unaffected, at least through March 17, 2027,” he said.
Americans’ messages swept up in FISA surveillance
Title VII, including Section 702, was added to the FISA law in 2008. It was last reauthorized in 2024 when President Biden signed a bill to continue and expand warrantless surveillance under Section 702.
“FISA Section 702 allows US intelligence agencies to spy on foreign targets without a warrant, but the practice constantly sweeps up the communications of Americans who are in contact with people outside of the country,” the Electronic Privacy Information Center (EPIC) said yesterday. “It’s a loophole that government agencies have increasingly exploited to surveil Americans without having to obtain permission from the court.”