Congress Let a Warrantless Spy Law Lapse for the First Time. A Secret Court Order Keeps It Running.

At 12:01 a.m. Friday, the legal authority behind one of the U.S. government’s most powerful spying tools quietly expired for the first time since it was created. Section 702 of the Foreign Intelligence Surveillance Act — the law that lets American intelligence agencies collect the emails, calls and texts of foreign targets without a warrant — lapsed after the House and Senate both refused to extend it.

And almost nothing about the surveillance is going to stop.

That paradox is the real story of the 702 fight. The statute is dead for now, but a classified order from the Foreign Intelligence Surveillance Court, signed in March, keeps the collection running on its existing schedule — by most accounts through roughly March 2027. What lapsed at midnight was Congress’s permission to keep authorizing new programs after that. What did not lapse is the eavesdropping already underway.

The collapse had little to do with surveillance policy. It was a proxy war over a single appointment — President Trump’s decision to hand control of the nation’s 18 spy agencies to a housing regulator with no intelligence background.

What Actually Lapsed — and What Didn’t

Section 702 was added to FISA in 2008 to let the government target foreigners overseas who use American email, phone and cloud services. Because those foreigners constantly communicate with people inside the United States, the program also sweeps in the messages of Americans — and the FBI, CIA and NSA then run what civil-liberties groups call “backdoor searches” through that pool for U.S. persons’ data, without a warrant. The Brennan Center for Justice estimates those queries number in the thousands each year. That dual nature is exactly why the law has become so hard to renew: national-security hawks call it indispensable, and a bipartisan bloc of privacy hardliners calls it a warrantless dragnet.

But the sunset built into the statute does not flip a switch on the wiretaps. Under FISA’s transition provision, collection authorized by certifications already in force can continue until those certifications expire on their own terms. The FISC approved the current annual certifications in March. They run for about a year. So the intelligence community can keep collecting under them well into 2027 — Congress’s vote notwithstanding.

Lawmakers know it. On the House floor this week, Rep. Jamie Raskin of Maryland, the top Democrat on the Judiciary Committee, pointed out that the surveillance would carry on essentially unchanged after Friday because everything already certified stays in motion. That is precisely why Democrats felt they could let the deadline pass without, in their view, blinding the country: the immediate operational cost of a lapse is close to zero. The cost arrives later, when the existing certifications run dry and there is no statute to authorize their replacement.

How a Housing Regulator Broke the Deal

The standoff traces directly to Trump’s installation of a new acting spy chief. After Tulsi Gabbard resigned in early June, the president named Bill Pulte — head of the Federal Housing Finance Agency and chairman of Fannie Mae and Freddie Mac — to run the Office of the Director of National Intelligence while keeping his housing job. The pick drew bipartisan alarm, detailed in American Courant’s earlier report on Trump’s decision to put a homebuilding executive in charge of 18 spy agencies.

Democrats turned that alarm into leverage. Their argument: they would not vote to extend a warrantless surveillance program at the exact moment a Trump loyalist with a record of probing the president’s opponents was about to gain access to its raw intelligence streams. Sen. Mark Warner of Virginia, the Intelligence Committee’s vice chair, said his party could not hand expanded surveillance authority to an agency that Pulte was about to oversee, given the risk that sensitive data could be turned against political targets.

The math followed. On June 5, the Senate failed to advance an extension on a 47–52 procedural vote, with seven Republicans — Josh Hawley and Eric Schmitt of Missouri, Mike Lee of Utah, Rand Paul of Kentucky, Rick Scott of Florida, John Kennedy of Louisiana and Tommy Tuberville of Alabama — joining nearly every Democrat. Those Republicans opposed the law on civil-liberties grounds; the Democrats opposed it over Pulte. The two camps wanted opposite things and produced the same result.

The House delivered the final blow Thursday. Speaker Mike Johnson brought up a clean three-week patch under a fast-track procedure that required a two-thirds majority. It failed 198–218, with 19 Republicans voting no and seven Democrats crossing the other way. The chamber then left town and is not scheduled to return until June 23 — eleven days after the law it was trying to save expired.

Johnson was blunt about where he laid the blame. “The Democrats, 199 of them, voted against a clean, three-week extension for political purposes,” he told reporters afterward. He went further: “I pray that we do not have a serious calamity on our shores over the next few weeks. We have done everything we possibly can.”

The Case for the Tool

Intelligence officials and their allies in both parties insist the program is one of the government’s most valuable. Supporters credit Section 702 collection with helping disrupt the August 2024 plot to attack a Taylor Swift concert in Vienna — an attack Austrian and U.S. officials said was meant to kill large numbers of fans, and for which a suspect was convicted and sentenced this spring. That case has become the proponents’ go-to example as the deadline closed in.

Sen. Chuck Grassley of Iowa, the Judiciary Committee chairman, framed the lapse as reckless, calling it “a gamble we can’t afford to take” in a statement urging colleagues not to let the authority die. Johnson tied the stakes to the calendar, noting the country is hosting unusually large gatherings this summer — among them the FIFA World Cup that opened this week at Estadio Azteca and the approaching America 250 celebrations. The acting spy chief, he and others argued, would be walking into the job during exactly the window when foreign-threat collection matters most, including the surveillance feeding U.S. assessments of the still-tenuous nuclear deal with Iran.

Privacy advocates counter that the same backdoor-search powers that make 702 valuable to the FBI are the reason it should not be renewed without a warrant requirement for Americans’ data — a reform Congress has repeatedly debated and repeatedly declined to adopt.

What Comes Next

For now, the practical picture is stable and the political one is not. The certifications keep the collection alive into next year, so there is no immediate intelligence blackout. Pulte is still set to take over ODNI on June 19, the date Trump reaffirmed this week, which means the appointment that detonated the deal will be a fact on the ground before the House even returns.

The genuine cliff is further out. If Congress is still deadlocked when the March 2027 certifications expire, the government would lose the ability to authorize new 702 collection — and the gradual erosion would begin in earnest. Renewal also tends to get harder, not easier, the longer a program sits in limbo, as wary members add reform demands.

Whether lawmakers use the next several months to strike a deal — on Pulte, on warrants, or both — or simply let the clock run is the question now hanging over a surveillance system that, for the first time, is operating without a law behind it.