Will a FISA lapse cause a disaster? Depends on who you ask

Complaints in the Senate over how — and when — to reauthorize the country’s warrantless surveillance powers are renewing questions about whether the foreign spying program could be plunged into a legal gray area.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) will expire on April 19, triggering a scramble among those concerned about a lapse in the law authorizing the government to spy on foreigners located abroad.

But many of those pushing for reforms to Section 702 don’t share their concerns about the timing, suggesting that it’s better to let the spying tool expire if it gives them more time to tinker with the law.

The risks of doing this depend on who you ask.

“We will go blind on April 20,” House Intelligence Chairman Mike Turner (R-Ohio) told reporters last week, just days before the House passed the bill reauthorizing FISA 702, which now is being discussed by the Senate.

Others have suggested that FISA’s expiration is little more than another date on the calendar.

“I’m not worried about the date,” Sen. Rand Paul (R-Ky.), a critic of FISA, said of the looming deadline.

“If all else fails, I think we can live under the Constitution maybe for a day, maybe two days.”

Senate Majority Leader Chuck Schumer (DN.Y.) on Tuesday introduced a motion to move forward with the House’s FISA package, a first step toward passing the bill.

But FISA 702 encountered several obstacles to reauthorization, forcing Congress to approve a short-term extension in December that prevented it from expiring at the end of the year, postponing the battle until April.

Sen. Ron Wyden (D-Ore.), concerned that the privacy of U.S. citizens could be infringed by the program, vowed to “do everything in my power to prevent it from passing the Senate” unless reforms additional charges be added to protect Americans whose communications with foreign targets are blocked during surveillance.

The bill includes reforms to the 702 process, including a drastic selection of who can approve inquiries involving US citizens. It also requires further review of this research. But it does not include the warrant requirement that many privacy advocates have advocated for and some hope to remove other measures added to the House bill.

Confusion over the future of FISA 702 stems, in part, from the program’s dueling approvals.

Although the congressional authority underlying the law expires on April 19, the Foreign Intelligence Surveillance Court recently recertified the program for another year, with that certification set to expire in April 2025.

“If the government has obtained renewal of the certifications, even if the law is not reauthorized this month, those certifications will remain in effect throughout the year,” said Carrie Cordero, a former attorney in the Office of the Director of National Intelligence. , which advocated for the reauthorization of FISA 702.

“The government should be able to add new targets, but there is some element of uncertainty that could potentially be challenged and it is not good from a national security perspective to have any ambiguity about the legal authority in place,” she said.

The government has stated that these concerns are not just theoretical.

For national security leaders, having one and not the other would open the door to resistance from technology companies like Google and cellphone providers, which have been asked to help surveil foreign targets.

“We know from experience dating back to 2008 that when there is a lapse in the underlying authority, this introduces a degree of uncertainty that leads to non-compliance. This leads to litigation. This leads to a reduction in overall revenue,” a senior government official told reporters earlier this month.

The official was referring to the oversight of a precursor to FISA 702, which both the attorney general and the director of national intelligence (DNI) said at the time had had real impacts.

“We lost intelligence last week as a direct result of the uncertainty created by Congressional inaction,” then-Attorney General Michael Mukasey and then-DNI Director JM McConnell wrote on the sixth day after the law’s expiration.

Not everyone agrees that the situation would be so dire.

Elizabeth Goitein, senior director of the Freedom and National Security Program at the Brennan Center for Justice, accused the administration of grossly inflating the risk that could result from potential challenges.

“The government still says it would be a tragedy if Section 702 were to lapse because some of the companies that are required to turn over communications to the government could file lawsuits, essentially could resist and try to get the FISA court to overturn 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,” she told The Hill.

“The fact that you have to litigate is not a reason to rush the enactment of legislation” without taking time to consider more rigorous reforms, he added.

But Cordero warned that a long-term lapse that would extend beyond the court’s April 2025 certification, while not halting surveillance, would limit its oversight. In effect, opponents of the program would see a worse situation.

“The long-term scenario of not reauthorizing 702, whether under this administration or under an unknown future administration, would be that a president would be forced to rely on constitutional authority. And there would no longer be a legal structure with all these procedures, processes and judicial oversight. Instead, they would be the prerogatives of the executive branch,” she said.

“And I don’t think that’s the world that civil liberties advocates who are worried about surveillance really want to live in.”

Nor would Section 702 be the only provision called into question by a long-term oversight. Other sections of the law that provide protections for how Americans can be surveilled when they are abroad would also expire, and judicial certifications of those programs would expire before those of Section 702.

“Sections 703, 704, 705 ensure that foreign intelligence surveillance of an American who is outside the United States must occur 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,” Goitein said.

Questions about what would happen to the program’s legal basis amid a lapse have circulated for months, as Congress has been repeatedly unable to agree on a path forward for reforming the law.

Now, with the Senate just a few days away, some members of the Upper Chamber have committed to defending their own priorities.

Wyden was upset to see the House — after the bill was temporarily blocked by 19 GOP members — reauthorize FISA for just two years. He also opposes a measure pushed by the House Intelligence Committee that changed the definition of who should assist in FISA 702 surveillance.

“The FISA court, as you know, provided this additional time to resolve this matter,” he said Tuesday.

“I’d rather do this right.”

Sen. Marco Rubio (R-Florida), the top Republican on the Senate Intelligence Committee, warned that a short lapse in 702 authorities might not have a big impact.

“I don’t think a delay of a day or two for this to be approved will be significant and catastrophic. The key is to do it,” he said.

But Senate Intelligence Chairman Mark Warner (D-Va.) castigated colleagues who suggested negotiating the bill beyond the April 19 FISA 702 authorization.

“Anyone thinking that America is going dark right now [is OK] you are making a big mistake,” he said.

Alexander Bolton contributed.