FISA Section 702 Lapse: Surveillance Powers Expire as Congress Fails to Act

On June 12, 2026, Section 702 of the Foreign Intelligence Surveillance Act expired after both chambers of Congress failed to act. The House rejected a three-week extension 198-218 on June 11, and the Senate separately failed three unanimous-consent attempts to pass a short-term reauthorization. The lapse means no new surveillance can be authorized under 702, though ongoing certifications and court-ordered collection may continue for a period. This is the first time the program has expired since its creation in 2008, and it reflects a breakdown in congressional consensus on surveillance powers rather than a deliberate move to protect civil liberties.

The expiration offers a rare opportunity to demand meaningful reforms — particularly a warrant requirement for querying Americans' data collected incidentally under 702, as the ACLU and EFF have long advocated. The 2024 Reforming Intelligence and Securing America Act (RISAA) did not weaken FISA court oversight; rather, it expanded it by requiring DOJ to allow congressional members and staff to attend FISC/FISCR proceedings, repealing 'abouts collection,' and strengthening querying restrictions. However, critics argue RISAA simultaneously expanded some government surveillance powers — for example, by broadening the definition of 'electronic communication service provider' — while leaving the core warrantless search issue unaddressed. The same bipartisan dynamic that produced RISAA's mixed reforms is now at play: the push to reauthorize 702 will likely include both privacy gains and surveillance expansions, but without the public attention that a lapse creates, the outcome may tilt further toward government power.

The immediate harm to ordinary Americans from the program's continued operation is real: every email or call involving a foreign journalist, family member, or business contact can be ingested into government databases without probable cause, and later searched under relaxed 'U.S. person' querying rules. The administration's fast-track reauthorization plan, backed by Project 2025 allies, seeks to restore the status quo ante with even fewer guardrails. The lapse is a procedural pause, not a victory — but it is a pause that advocates and civil rights litigators must use to press for a warrant requirement and to ensure that RISAA's oversight expansions are not undermined by executive overreach.