FISA surveillance authority lapses, but key spying can continue into 2027
Title VII of FISA is set to expire after Congress failed to extend it, though existing court approvals keep Section 702 surveillance operating.
By James Whitfield · Staff Writer
3 min read
Title VII of the Foreign Intelligence Surveillance Act is set to expire at midnight after Congress failed to approve an extension, but surveillance under a major part of the law is not expected to stop. The Brennan Center for Justice at New York University School of Law said current Section 702 approvals remain valid through March 17, 2027.
Section 702 allows U.S. intelligence agencies to collect communications of foreign targets without a warrant. Privacy groups say the program also captures messages involving Americans when they communicate with people outside the United States.
The Brennan Center said Section 702 runs through annual certifications approved by the Foreign Intelligence Surveillance Court. The current certification, issued March 17, 2026, would allow collection already approved by the court to continue even after the statutory sunset, the group said.
Cato Institute senior fellow Patrick Eddington reached the same conclusion, writing that certifications and provider directives already in force at expiration can continue until those authorizations run out. Rep. Jamie Raskin, D-Md., told CBS News that existing surveillance activity would continue unchanged and that current authorizations would remain in effect at least until March 17, 2027.
Fight over warrantless searches
Congress added Title VII, including Section 702, to FISA in 2008. President Joe Biden signed a reauthorization in 2024 that continued and expanded the authority, according to prior reporting on the legislation.
The Electronic Privacy Information Center said Section 702 has become a way for agencies to obtain Americans’ communications without first getting a warrant. The group said the program targets people abroad but can collect Americans’ messages when those Americans are in contact with foreign targets.
In March, two Democratic lawmakers and two Republican lawmakers introduced a proposal to restrict the government’s ability to access Americans’ private communications without a warrant, according to Rep. Zoe Lofgren’s office. Lawmakers this week did not pass even a short-term extension as they disputed proposed surveillance changes and President Donald Trump’s choice of Bill Pulte as acting director of national intelligence.
Pulte previously led the Federal Housing Finance Agency and had no national security experience, according to the accounts cited in the congressional debate. House members left for recess after the failed extension effort, and no further House votes are expected until June 23.
Some supporters of renewal warned that allowing the law to lapse could endanger national security. House Majority Leader Steve Scalise, R-La., told Politico that a vote against extension would put American lives at risk.
NPR reported that communications providers would still have a legal duty to turn over material under existing directives. Some lawmakers, NPR reported, are concerned that companies could test that obligation in court, which could create uncertainty over the flow of intelligence.
Other surveillance powers remain
The Electronic Frontier Foundation said the government would still have other surveillance authorities if Congress does not renew Section 702 before the current certification expires in 2027. The group pointed to Executive Order 12333, a Reagan-era authority covering intelligence collection overseas.
Eddington wrote that much U.S. overseas signals intelligence is already conducted under Executive Order 12333 rather than Section 702. Because that authority does not depend on the FISA provision or a FISA Court order, he said a Title VII lapse would not remove those collection systems.
The expiration still leaves Congress with a fight over whether to renew Section 702, and under what limits. Privacy advocates are pressing for warrant requirements on searches involving Americans’ communications, while supporters of the program argue that broad access remains necessary for foreign intelligence work.
This story draws on original reporting from Ars Technica.