FISA: What to know about the government’s key spy powers on the verge of expiration

By Annie Grayer, CNN

(CNN) — The deadline to renew a powerful surveillance law has exposed deep divisions in the Republican Party and left US national security officials scrambling as the potential for blind spots in intelligence collection becomes an ever increasing possibility.

For months, House Republicans have been trying to find a path forward to reauthorize the controversial spy powers. The law, Section 702 of the Foreign Intelligence Surveillance Act (FISA), allows authorized US officials to gather phone calls and text messages of foreign targets, but can also scoop up the data of Americans in the process.

Here’s what to know as lawmakers face a midnight deadline to re-up the authority.

How does the government use FISA?

Under updates to the FISA law enacted in 2008, the government has the ability to compel US phone companies and internet providers to provide access to communications across the “backbone” of the internet. The government can also compel access to phone information that can allow it to obtain the content of calls and also require email providers and others to provide communications from a specific address.

And according to a September 2023 public oversight report by the Privacy and Civil Liberties Oversight Board – which was formed to periodically assess the program – in addition to the above methods of collecting data, the board refers to an additional “highly sensitive technique” that was only authorized in 2022.

The trove of data, including a large portion of US internet traffic, is meant to provide US intelligence agencies with quick access to data regarding foreigners in other countries.

As CNN has reported, a good portion what what appears in the Presidential Daily Brief has some data that comes from the 702 program, according to the National Security Agency.

What’s at risk if it expires?

It depends who you ask.

Senior national security officials have for years said Section 702 is critical to thwarting terror attacks, stemming the flow of fentanyl into the US and stopping ransomware attacks on critical infrastructure.

The authority is now more critical than ever, officials say, amid the delicate ceasefire in the US war with Iran and a heightened threat environment.

Civil liberties groups on the left and the right, meanwhile, argue the surveillance authority risks infringing on Americans’ privacy. The program is currently warrantless, in large part because it is aimed at foreigners not Americans, but US citizens do get swept up in the surveillance when they are interacting with targets abroad.

The law, which is on the verge of expiration, has in recent months become embroiled in the broader Republican battle over the reach of the government’s surveillance powers.

And some Democrats who have previously supported the spy program are now concerned about renewing the it under a Trump administration that they do not trust, making the margins Republicans have to rely on even smaller.

At first, the Trump administration did not weigh in on how they wanted Republican lawmakers to handle the renewal of the law, allowing divisions to build and fester. The president and his supporters have previously conflated the law with other legal methods used to investigate Russian interference in US elections and allegations that people associated with the Trump campaign in 2016 were connected to those Russian efforts.

But earlier this month, President Donald Trump called for a clean reauthorization of the law for 18 months. That did not sway conservative Republicans who have insisted that the bill include reforms like warrants before querying Americans’ communications.

How long could the law be extended?

After countless meetings and listening sessions failed, House Speaker Mike Johnson put forward a proposed three-year extension of the law.

Conservatives stood firm and withheld their votes until the speaker obliged and attached on an unrelated crypto measure to the must-pass spy powers bill that made it dead on arrival in the Senate.

Senate leaders, who looked on from across the US Capitol, were left scrambling and ultimately suggested another short-term extension, which will only prolong the drama since they do not want the crypto provision attached.

Congress has until midnight to clear that extension.

That will serve as a temporary patch, but the problem isn’t going away because in 45 days lawmakers will be right back where they started.

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CNN’s Zachary Wolf contributed to this report.