Congress Lets Section 702 of FISA Expire, but Court Certifications Keep Much Collection Going

Section 702 of the Foreign Intelligence Surveillance Act expired June 12 after Congress failed to pass another short-term extension, a striking break for one of the U.S. government’s most important surveillance powers. But the practical effect is narrower than the headline suggests: surveillance already authorized under the law is expected to continue for months under court-approved certifications that remain in force.

That distinction is central to understanding what changed. The lapse is a major legal and political setback for a long-running intelligence authority and a clear victory for privacy advocates that had pushed to let it expire. But it does not mean the government’s existing Section 702 collection shut off overnight.

The immediate trigger was Congress’ inability to keep the program alive while lawmakers fought over reforms. On June 11, the House failed 198-218 to pass a measure extending Section 702 until July 2. Earlier in June, the Senate failed 47-52 on a procedural motion to advance an extension, helping set up the lapse.

Section 702, codified at 50 U.S.C. Section 1881a and first enacted in 2008, lets U.S. intelligence agencies compel electronic communications providers to assist in collecting communications of non-U.S. persons located abroad for foreign intelligence purposes, without individualized warrants. Supporters have long described it as a critical national security tool.

The authority has also been one of the most disputed parts of U.S. surveillance law. Although the targets are foreigners overseas, the collection can incidentally sweep in Americans’ communications. The FBI has also been able to search Section 702 databases using U.S.-person identifiers, a practice critics often call backdoor searches.

That use of the law suffered a major legal blow last year. In United States v. Hasbajrami, decided Jan. 22, 2025, a federal district court held that backdoor searches of Section 702 data ordinarily require a warrant.

Even so, the expiration of the statute does not automatically invalidate surveillance already approved by the Foreign Intelligence Surveillance Court, the secret court that reviews surveillance applications in national security cases. The Brennan Center for Justice has said the court’s most recent annual certifications, approved March 17, 2026, remain valid until they expire, roughly in March 2027. Under that analysis, directives issued to providers under those certifications also remain in force, and companies are still legally required to comply or risk fines and court orders.

The more unsettled question is what the government can do next. The Brennan Center has said the lapse may limit the government’s ability to issue new directives or begin new collections after June 12, but that remains a matter of legal analysis rather than a settled ruling.

Privacy groups nonetheless treated the lapse as a meaningful moment. The Electronic Frontier Foundation called it a win after months of temporary extensions and lobbying against reauthorization.

Lawmakers who opposed another extension argued that any revival of the authority should come with stronger safeguards. In a June 11 statement, House Democratic leaders said, “Section 702 is a critical foreign intelligence authority, but we cannot in good conscience vote for reauthorization without significant reforms to protect both national security and the constitutional privacy rights of Americans.” Contemporaneous reporting also linked some Democratic opposition to President Trump’s appointment of Bill Pulte as acting director of national intelligence.

So while Section 702 has now lapsed as a matter of statute, that does not mean the surveillance conducted under it has ended in practice. The immediate story is a split-screen one: Congress allowed a major surveillance law to expire, but court-approved authorizations already in place mean much of the collection associated with it is expected to continue until roughly March 2027.