The urgency regarding the renewal of the provision of the Foreign Intelligence Surveillance Act that permits the United States to collect data on foreign nationals — and inadvertently U.S. citizens without a warrant — appears to have dissipated, in part, because cellphone companies continue to cooperate with the federal government.
“The phone companies collecting the data despite the lapse makes it very difficult long-term to reauthorize FISA, which is very dangerous for national security,” a House Republican with insight into FISA told the Washington Examiner.
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FISA data collection has not stopped completely since Section 702’s expiration because the program’s authorities were renewed by the Foreign Intelligence Surveillance Court until March 2027. Spokespeople for two of the nation’s largest cellular providers, AT&T and Verizon, declined to comment to the Washington Examiner.
FISA Section 702 expired June 12 after discussions between Republicans and Democrats in the House and Senate did not amount to a compromise, as those for the provision advocate its importance to, for example, President Donald Trump’s daily intelligence briefing, and those against it underscore how it undermines the privacy of U.S. citizens.
Section 702 makes it lawful for the federal government to surveil foreign nationals while they are overseas without a warrant, but their communications with U.S. citizens are routinely included in the intelligence sweeps.
Negotiations over renewing Section 702 came to a screeching halt last month after Trump announced Bill Pulte, director of the Federal Housing Finance Agency and chairman of Fannie Mae and Freddie Mac, would be his acting director of national intelligence after Tulsi Gabbard resigned from the post.
Trump nominated Jay Clayton, a former U.S. attorney for the Southern District of New York, to helm the Office of the National Intelligence. The nomination appeared to be on a glide path until Trump instructed Clayton not to appear at his confirmation hearing until the Senate approved his replacement in Manhattan.
The president also told Congress he would not support the renewal of Section 702 until lawmakers passed the SAVE America Act. Trump relented, and Clayton appeared before the Senate intelligence committee earlier this month. During the hearing, Clayton was questioned about whether he believed Joe Biden won the 2020 election and about Pulte’s declassifying of documents related to alleged interference in that contest.
Clayton’s refusal to say whether Biden had won drew opposition to his nomination from Democrats. On Monday, Clayton’s nomination advanced in the Senate along party lines with no Democrats voting in support. Clayton is expected to be confirmed Tuesday.
Trump’s position regarding FISA privately some rankled Republicans, though many GOP members, including Sen. Tom Cotton (R-AR), directed their frustrations toward Democrats.
Much of Democrats’ opposition to FISA stems from concerns about the warrantless nature of the surveillance that Section 702 permits, in addition to concerns about Pulte’s lack of national security experience and demonstrated record of targeting Trump’s perceived political opponents from his perches of power.
“Democrats have refused to pass a bipartisan FISA bill until a new DNI is confirmed,” a spokeswoman for Cotton told the Washington Examiner. “Now that that’s about to occur, it’s time for them to stop playing politics with national security and put up the votes to give our intelligence community the tools it needs to keep this country safe.”
Another Republican aide told the Washington Examiner, “It appears the Democrats’ posture on FISA and how they’ll be willing to quickly reauthorize it after Clayton is confirmed isn’t the same stance they have today.”
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Simultaneously, other Republicans have similar civil liberty concerns to Democrats, including 19 GOP House lawmakers and seven counterpart senators who voted against Section 702’s renewal in recent weeks.
“The House is also out until September, so even if [the] Senate did vote on it quickly, it wouldn’t be reauthorized for many weeks,” the Republican aide said. “It is still certainly a priority, we’ve just been waiting to bring it to the floor until we know we have the votes to pass it.”
