For the first time in nearly two decades, Congress missed a deadline for reauthorization of a key surveillance authority, raising questions about whether the U.S. government can continue to monitor certain communications.

Lawmakers have regularly approved short- and long-term extensions for Section 702 of the Foreign Intelligence Surveillance Act since 2008, clearing the way for intelligence agencies to collect and analyze electronic communications from people living in other countries.

The government says it uses the program to secure information that can protect the United States or its citizens from attacks by foreign powers, terrorism, weapons of mass destruction, the trafficking of illegal drugs and other threats.

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Intelligence agencies aren’t supposed to target U.S. citizens but lawmakers across the political spectrum and civil liberties organizations have repeatedly raised grievances with how officials handle the information they get when an American is part of a targeted conversation.

Even though lawmakers let Section 702 lapse on June 12, the annual certification from the court that oversees the program should allow intelligence agencies to keep collecting data, experts say.

Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union, said during an interview with States Newsroom that Congress included a safety net in a previous authorization that planned for this exact scenario.

“We feel pretty confident that there will be no immediate consequences,” he said. “The way the statute is crafted, it basically says if there is an existing certification, you can continue Section 702 surveillance until that certification expires.”

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That won’t happen until March 2027.

Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, agreed with the assessment there are safeguards in place, but he contended members of Congress should not have taken the risk of letting that section of the Foreign Intelligence Surveillance Act expire.

“There’s a dangerous assumption that the program will function seamlessly if this statute expires on Friday,” he said. “While I hope the certifications issued a few months ago will still apply in the event of the statute lapsing. This is not a certainty. There will be high-stakes litigation and a very real possibility that intelligence collection will cease at least temporarily. And in this work of intelligence gathering, minutes do matter.”

Pulte announcement

Republicans and Democrats have worked for the past few months to broker consensus on another years-long reauthorization with overhauls. Those negotiations included significant debate about what the government should do when Americans are part of the conversations swept up by intelligence agencies.

But President Donald Trump’s announcement that Bill Pulte would temporarily run the Office of the Director of National Intelligence following Tulsi Gabbard’s exit raised concerns on Capitol Hill and stopped negotiations.

Democrats said someone trustworthy must lead the ODNI even for a brief amount of time, while Republicans argued the two issues shouldn’t be linked and that letting Section 702 lapse represents a national security risk.

Senate Select Committee on Intelligence Chairman Tom Cotton, R-Ark., said not extending the program for a few weeks while lawmakers work out their differences on a longer-term bill could have severe, even fatal, consequences.

“Well over half of every item in the president’s daily brief is derived from Section 702,” he said. “It has stopped terrorist attacks, it stopped the flow of deadly drugs into our country, it’s protected our troops overseas, it’s allowed us to rescue troops overseas.”

Senate Minority Leader Chuck Schumer, D-N.Y., contended that having Pulte temporarily run the ODNI even though he has “zero relevant experience” would place “Americans in danger.”

“We need real leadership in the intelligence community, not a national security novice sent to undermine the work of intelligence professionals,” he said.

Schumer added that Pulte couldn’t be expected “to speak truth to power, to conduct objective analysis, to resist efforts to politicize the intelligence community in a job where facts are so important, and the president knowing the real facts are so important.”

Trump’s choice of Jay Clayton as his official nominee for the role June 11 as both chambers of Congress ended their work week didn’t ease concerns or clear the way for a short-term extension of Section 702.

“Pulte has to go. He cannot be in the DNI role,” Schumer said. “Our national security is too important.”

More problems

Pulte’s short-term assignment, however, isn’t the only roadblock to a long-term reauthorization.

Oregon Democratic Senator Ron Wyden said substantial changes must be made and that “there just have been too many abuses of Americans’ rights across multiple administrations” under the authorities provided by Section 702.

“Every day that 702 is in effect without reforms is a day that Americans’ rights are under threat,” he said. “I believe Americans deserve new guardrails. If Congress is going to extend these authorities, and that is what we’re talking about, those guardrails are essential. And at a minimum, Americans deserve transparency about how these surveillance powers have been abused.”

The House Freedom Caucus, a group of far-right Republicans led by Maryland Representative Andy Harris, has also pressed for overhauls.

“Congress can, and should, continue seeking reforms to Section 702 without endangering national security,” it posted on social media. “Necessary reforms – including warrant requirements for searching Americans’ private communications, consistent with the Fourth Amendment – can also be passed by Congress without endangering national security.”

The Freedom Caucus added that it’s “nonsense” for anyone to “claim that once Section 702 expires, lawsuits by communications and tech companies could suspend intelligence collection.”

Court certification

One of the reasons some members of Congress have raised dire concerns about a lapse of Section 702 even with the certification in place is to lobby for a years-long reauthorization, Hamadanchy of the ACLU said.

“They’re trying to use that fear-mongering to force people to vote for something that they may not like otherwise,” he said.

The sense of urgency created by waiting until the last minute to hold floor votes on a reauthorization bill and raising the possibility of terrorist attacks, Hamadanchy said, can also be used to prevent amendment votes.

That, for example, could block floor debate on whether to require a warrant for Americans’ data that does get collected as part of other Section 702 surveillance.

“There’s been repeated requests under both administrations of both parties in terms of that number of Americans. They’ve never told us,” Hamadanchy said. “But what we do know is they routinely search through that database for the communications of Americans without a warrant.”