The law that authorizes the federal government to conduct electronic surveillance has lapsed, thanks to an ongoing dispute between the White House and Congress — stripping national security agencies of one of their most powerful tools for tracking foreign targets at a time when terrorism and espionage threats directed at the U.S. are surging.
The Foreign Intelligence Surveillance Act, more commonly known as FISA, is a modern wiretapping law enacted in 2008. Section 702 of the law allows the U.S. government to spy on foreign targets’ communications without a warrant.
Authorization for the law expired June 13. Now communications such as phone logs, emails, text messages, attachments and other data that are off limits for the feds as the intelligence community waits for the law’s renewal.
One active intelligence professional told The Washington Times that as much as 60% of the information in President Trump’s daily intelligence update, known as the President’s Daily Brief, involves FISA-labeled intelligence in one way or another.
The purpose of the program, according to multiple intelligence professionals, is to combat foreign terrorist plots against America. Multiple sources confirmed that daily intelligence products from across the government contain FISA-labeled information. They warn that the loss of that information could impact the safety of Americans. Data collected under FISA has been used to foil multiple large-scale terror plots in recent years, they said.
The controversy over FISA stems from the collection of Americans’ data.
Multiple government agencies with access to the intelligence can search a large database without a warrant, even using words or tags focused on U.S. citizens, so long as the data was collected in connection with a foreign person.
This year’s expiration of the law came after two extensions in the spring, as the Republicans who control Congress avoided exposing their members to a potentially damaging vote.
Civil liberties groups from across the political spectrum have advocated against Section 702. Most argue that at a minimum, the law should include stronger guardrails to protect U.S. citizens’ data that may be caught up in surveillance of foreign actors.
The congressional stalemate over how to reform FISA has lasted for years.
In 2024, during the Biden administration, a similar coalition of bipartisan lawmakers pushed against renewal.
The major sticking point was whether to require intelligence agencies to get a warrant before searching for information about Americans.
The provision passed — notably without including the warrant requirement.
An already frustrated far-right faction of the Republican conference had demanded it and lost. A number of those lawmakers are now out of the running for re-election this fall.
Searches for U.S. citizens’ data bump up against Constitutional rights to privacy and protection against unlawful search.
Rep. Thomas Massie, a Kentucky Republican and longtime advocate for FISA reform, said the databases have been used to query political activists, journalists and congressional lawmakers and staff.
Rep. Jim Himes of Connecticut, the top Democrat on the House Permanent Select Committee on Intelligence, said he started drafting a proposal that would allow the government to query U.S. persons but would require sign-off from a Foreign Intelligence Surveillance Court judge before reviewing any information returned under the search.
“The draft we had would have required the government to attest that it was reasonably likely to return foreign intelligence information, as opposed to probable cause that a crime had been committed,” he said.
That draft was stopped by mainstream Republicans, including Speaker of the House Mike Johnson, according to Mr. Himes.
Now, the law is quickly becoming a frequent “must-pass” provision in Congress. That status, and the law’s controversial impact on American privacy, have made it a political football for nearly every player in Washington.
President Trump posted “KILL FISA” on Truth Social in April 2024, alleging the program was “illegally used against” him. The president has often criticized the intelligence community and this year attempted to tie the passage of the law to the SAVE America Act, a piece of voting legislation that previously failed.
It’s one of several demands the president has made and attached to the renewal of the lapsed spy authority that could impact his own daily brief. Mr. Trump effectively cancelled the confirmation hearing for Jay Clayton to be director of national intelligence, even after Senate leaders said they would proceed with the nomination in part over attachments to FISA.
Senate Intelligence Committee Chairman Tom Cotton asserted his authority over the hearing in a social media post, saying he was not canceling Mr. Clayton’s planned testimony, but eventually caved.
Extending the spy law does not meet the requirements to allow Republicans to act on their own, necessitating bipartisan support. Between a push for reforms, the need for Democrats to support the majority to pass the renewal and its now critical role in national security, intelligence professionals The Washington Times spoke to said they are worried about how long renewal could take.
• Lindsey McPherson contributed to this report.
