The earlier deadline for the controversial Section 702 of the Foreign Intelligence Surveillance Act (FISA) has been extended from December 31, 2017 to April 26, 2018.
Under Section 702, the N.S.A. and F.B.I. may collect information such as phone calls, emails, texts, and other electronic messages of foreigners abroad from domestic companies like AT&T and Google without a warrant, even when they talk with Americans. The program has expanded to a broad array of foreign intelligence purposes, not just counterterrorism.
On the eve of a Congressional hearing in which director of the FBI Christopher Wray was pointedly asked about the agency’s use of information “incidentally” gathered on US citizens, a spokesman for the Office of the Director of National Intelligence suddenly revealed that the security services believe they can continue to operate the program for four months beyond the law’s expiration at the end of the year.
According to Brian Hale, spokesperson for the Office of the Director of National Intelligence, the NSA can continue running its spy program until its one-year certification from the FISC runs out. Since it was last authorized on April 26, 2017, that means, Hale claimed, that it is valid until April 26, 2018.
The law that creates the program will expire on the last day of 2017 unless it is explicitly reauthorized by Congress. But lawmakers are currently caught up in negotiations over a tax overhaul and a larger issue over government funding.
Notably, a last-minute temporary measure or short-term fix agreed to by Congress extended the government’s ability to function to December 22, but if agreement isn’t reached by then, it is very possible that all government work will stop, and therefore, the warrantless US Foreign Intelligence Surveillance Act (FISA) will not be reauthorized in time.
However, earlier this month, the Trump administration decided that the N.S.A. and F.B.I. can lawfully keep operating their warrantless surveillance program even if Congress fails to extend the law authorizing it before an expiration date of New Year’s Eve, according to American officials.
If Congress fails to reauthorize the law this month, Hale acknowledged that the government believes it can keep the program going for months. Its reasoning centers on a legal complexity in how the program works: Under the law, about once a year, the secretive Foreign Intelligence Surveillance Court sets rules for the program and authorizes it to operate for 12 months.
The court last issued a one-year certification on April 26. That matters because a little-noticed section of the FISA Amendments Act says that orders issued under Section 702 “shall continue in effect until the date of the expiration.”
Hale stated that the provision, which is recorded in federal statute books as a “transition procedures” note accompanying the main text of the law, makes it “very clear” that “any existing order will continue in effect for a short time even if Congress doesn’t act to reauthorize the law in a timely fashion.”