Will a FISA lapse cause a disaster? It depends on who you ask
Grumbling in the Senate over how â and when â to reauthorize the nationâs 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 donât share their concerns on timing, suggesting itâs 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.
âWe will go blind on April 20,â 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 FISAâs expiration is little more than another date on the calendar.
âIâm not concerned with the date,â Sen. Rand Paul (R-Ky.), a FISA critic, said of the looming deadline.
âIf all else fails, I think we can live under the Constitution maybe for a day, maybe two days.â
Senate Majority Leader Chuck Schumer (D-N.Y.) filed cloture on a motion to proceed on the Houseâs FISA package Tuesday, 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 this month.
Sen. Ron Wyden (D-Ore.), concerned the privacy of U.S. citizens will be infringed upon by the program, has pledged âto do everything in my power to stop it from passing in the Senateâ 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 doesnât 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 702âs 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 2025.
âIf 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,â said Carrie Cordero, a former attorney with the Office of the Director of National Intelligence, who has advocated for reauthorizing FISA 702.
âThe government should be able to add new targets, but thereâs some element of uncertainty that potentially that could be challenged, and itâs not good from a national security perspective to have any ambiguity about the legal authority thatâs in place,â 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 such as Google and cell phone providers who have been asked to aid in the surveillance of foreign targets.
âWe 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,â 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 said at the time had real impacts.
âWe have lost intelligence information this past week as a direct result of the uncertainty created by Congressâs failure to act,â then-Attorney General Michael Mukasey and then-Director of National Intelligence Mike 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 Justiceâs Liberty & National Security Program, accused the government of overinflating the risk that could stem from possible challenges.
âThe 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,â she told The Hill.
âThe fact that itâs going to have to litigate is hardly a reason to rush to enact legislationâ without taking the time to consider more stringent reforms, she added.
But Cordero warned a long-term lapse that stretched beyond the courtâs April 2025 certification, while not stopping surveillance, would limit its oversight. In effect, opponents of the program would see a worse situation.
âThe long-term scenario of not reauthorizing 702, whether itâs under this administration, or an unknown future administration, would be that a president would be forced to rely on constitutional authority. And there wouldnât be a legal framework anymore with all of these procedures and process and court supervision. It instead would be executive branch prerogatives,â she said.
âAnd I donât think that thatâs the world that the civil libertarians who are concerned about surveillance really want to live in.â
Section 702 wouldnât 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 programsâ court certifications lapse ahead of those for Section 702.
âSections 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,â 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 â after the bill was temporarily blocked by 19 GOP members â only reauthorize FISA for two years. Heâs also opposed to a measure pushed by the House Intelligence Committee that shifted the definition of who must aid in FISA 702 surveillance.
âThe FISA court, as you know, provided this additional burst of time to get this matter resolved,â he said Tuesday.
âIâd rather get this done right.â
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.
âI donât 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,â he said.
But Senate Intelligence Chair Mark Warner (D-Va.) chastised colleagues who suggested negotiating the bill beyond FISA 702âs April 19 authorization.
âAnyone thinking America going dark at this point [is OK] is making a huge mistake,â he said.
Alexander Bolton contributed.
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