Controversial FISA spying law expires tonight; surveillance will continue

Title VII of the Foreign Intelligence Surveillance Act (FISA), which includes Section 702, expires at midnight tonight after Congress failed to pass an extension of the controversial spying law. However, this does not mean the government's spying powers will disappear.

According to the Brennan Center for Justice at NYU School of Law, surveillance under Section 702 operates under yearlong certifications approved by the FISA Court. The current certification, issued by the Foreign Intelligence Surveillance Court on March 17, 2026, will remain in place until March 2027.

The Brennan Center stated that surveillance hawks are claiming Section 702 surveillance will "go dark" on June 12 if Congress does not renew the law, in order to pressure members to accept a bill without meaningful reforms. However, the center emphasized that Congress planned for potential lapses and made clear that Section 702 surveillance may continue under existing certifications even if the statute sunsets.

The Cato Institute agrees, with senior fellow Patrick Eddington writing that Section 702 operates under annual programmatic certifications approved by the FISA Court, together with directives served on providers. Under the FISA Amendments Act's transition provision, acquisitions authorized by certifications and directives in effect at sunset may continue until those certifications expire.

Rep. Jamie Raskin (D-Md.) told CBS News that "government surveillance activities will continue unchanged" after Friday. He explained that everything already authorized and certified is in motion, and current FISA authorizations will continue unaffected, at least through March 17, 2027.

Title VII of FISA, including Section 702, was added to the law in 2008. It was last reauthorized in 2024 when President Biden signed a bill to continue and expand warrantless surveillance under Section 702.

The Electronic Privacy Information Center (EPIC) stated yesterday that "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." EPIC called this a loophole that government agencies have increasingly exploited to surveil Americans without court permission.