A Government Spy Program May Outlive Its Deadline — And Face A Secret Court Fight

The Trump administration could continue operating a controversial electronic surveillance program through next year even if Congress fails to renew it later this month — but doing so could thrust one of the government’s most powerful spy tools into untested legal waters.

Under Section 702 of the Foreign Intelligence Surveillance Act, which is set to lapse on April 30, the federal government can compel U.S tech providers to turn over the communications data of foreigners whom they believe possess information related to terrorism, weapons proliferation and other national security threats.

An untested quirk in the byzantine spy law technically allows the government to impose those orders on tech providers until March 2027, even if Congress fails to renew the statute underlying Section 702 before its current expiration date.

What happens from there is up for dispute.

Privacy activists have repeatedly accused defenders of Section 702 of overhyping the consequences of the law’s expiry as a way to strongarm Congress and jam through renewals that do not include needed privacy reforms. Dozens of lawmakers in both chambers have said they want agencies to be forced to obtain a warrant before accessing Americans’ data incidentally swept up in the program.  

A provision to require warrants for those searches failed in the House on a dramatic 212-212 vote during the last reauthorization in 2024.

But six current and former U.S. national security officials, as well as one tech lobbyist, told POLITICO at least some tech companies would balk at continuing to turn over their customers’ data for fear the statute’s expiration exposes them to a raft of lawsuits from privacy-conscious users in the U.S. and abroad — many of who have long alleged the program represents a major violation of their privacy.

These officials, national security hawks representing both parties, argue the statute's expiration would therefore trigger a series of legal skirmishes that would at least temporarily disrupt the flow of critical foreign intelligence tech companies furnish to the government.

“I think most likely you’ll have some injunctions filed immediately in court saying we don’t have to comply with this,” said Rep Darin LaHood (R-Ill.), who does not want to see the law overhauled.

Activists and lawmakers pushing for stronger privacy guardrails say those are scare tactics to short-circuit the ongoing debate.

“Even in the unlikely event that a company attempted to stop complying with a FISA order, I expect it would be compelled to resume collection for the government almost immediately,” said Sen. Ron Wyden (D-Ore.), a longtime proponent of overhauling Section 702’s privacy protections.

Spokespeople for Google, AT&T, Microsoft and Verizon did not respond to a request for comment. Tech providers subject to the statute cannot legally disclose their participation in the program, and the total number subject to Section 702 collection is unknown. They can only challenge the statute in a special government surveillance court, where proceedings are generally classified.

Despite several bitter Congressional debates in recent years, Section 702 has never lapsed on the three occasions it has come up for renewal. Congress passed the statute in 2008 to codify an electronic eavesdropping program the Bush administration set up in secret in the aftermath of 9/11.

Though the Trump administration has aggressively campaigned in recent weeks to avoid a deadlock on negotiations around privacy reforms, 2026 could break that streak. Nearly two dozen privacy-minded GOP lawmakers remain unmoved by the efforts, forcing Speaker Mike Johnson to retreat and buy time for further negotiations via a short-term extension of the law.

At issue is the fact that Section 702 regularly sweeps in texts and emails from Americans who unknowingly swap messages with foreigners under federal surveillance. Cuts of the communication records are then shared with four U.S. spy agencies, including the CIA, NSA and FBI, where officials do not need a warrant to search the databases for Americans’ data if they believe it will illuminate foreign spying or terror plots.

Privacy advocates argue the government should be forced to get warrants before making those searches, while national security hawks counter that would cripple a feature of the program that is key to sniffing out terrorist attacks, drug trafficking schemes and foreign spying operations that involve or target U.S. citizens.

Asked multiple times about the law’s possible expiration and how it is preparing, the White House responded with an oblique statement. “The Administration has always recognized this is a difficult issue to reach consensus on and we remain optimistic about a path forward,” it said.

Congress baked regular sunsets into Section 702 to periodically consider updates to a program lawmakers recognize as key to U.S. national security but also highly sensitive for civil liberties reasons.

But the law won’t just go dark if April 30 passes without fresh legislation.

Each year, the intelligence court overseeing the program, known as the FISC, must certify an extensive set of compliance and accountability procedures drafted by the Director of National Intelligence and the Attorney General, laying out how spy agencies can implement the program for the next 12 months. While much of these court proceedings remain classified, some are later released to the public in redacted form.

A statute in the law meant to provide a grace period if Congress nixes or amends it states that those certifications “shall continue in effect” until the certifications expire. Since the last such certification was reportedly issued last month, the Trump administration can continue obligating tech providers to turn over data through March 2027.

“I don’t think there is any viable path for a company to object when the law is so clear,” argued Jake Laperruque, a senior privacy expert at the nonpartisan Center for Democracy and Technology think tank.

The current and former officials, all of whom have played a direct role in overseeing Section 702, say there is no doubt that at least some providers would try to mount legal challenges to that provision if the law lapses, however.

In 2008, email provider Yahoo sued to stop complying with a predecessor surveillance statute, arguing that it was unconstitutional. And in 2024, two large tech providers reportedly informed the Biden administration they planned to stop complying if the statute expired that year.

CNN reported last week that some providers have privately informed the Trump administration they would stop complying if Section 702 expired this time around, and U.S. intelligence officials fear surveillance blind spots could result.

“Some providers will want to be absolutely sure for customer liability, shareholder liability and their own reputation, that they can say, ‘We were compelled by the government to do this,’” said Glenn Gerstell, a former general counsel at the NSA.

Privacy stalwarts don’t believe that's a serious risk to the program.

Laperruque argued providers would be especially wary of challenging Section 702 under Trump, who has consistently shown he is not afraid to attack private companies he believes undermine his agenda. He also pointed out that the Trump administration has a history of using aggressive legal maneuvers to browbeat tech providers into turning over sensitive user data, and that the U.S. government hit Yahoo with steep fines after it stopped complying with the program in 2008.

“Instead of relying on fearmongering and half-truths, Congressional leaders must allow a real debate on reforms,” said Wyden, adding: “There is a clear bipartisan coalition in favor of reforming Section 702 to protect Americans’ rights against unjust government surveillance.”

In its pressure campaign to renew the program without changes, the Trump administration has disclosed that Section 702 was used to locate a powerful Mexican drug lord, thwart a major terror attack against a Taylor Swift concert, and rescue unspecified U.S. hostages held abroad. It has also released a fact sheet detailing why it is critical to a range of U.S. national security priorities.

For his part, Gerstell believes the FISC would likely rule against those providers that balk at turning over user data if Congress fails to re-up the program by April 30. Any blind spots resulting from the statute’s expiry would therefore be temporary, he said.

But he and Rep. Jim Himes (D-Conn.), the top Democrat on the House Intelligence Committee, said it was reckless to let the statute expire and open the door for major legal setbacks to such an important intelligence tool.

“At best, you're in a situation of very complicated litigation,” said Rep. Himes, who supports some changes to Section 702 but has said he would rather see it preserved as is than overhauled.