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FISA Section 702 expires after House rejects extension

12 June 2026

At 11:59 p.m. eastern daylight time on 12 June 2026 Section 702 of the Foreign Intelligence Surveillance Act, codified at 50 U.S.C. § 1881a, expired without statutory reauthorisation — the first lapse of the program since its enactment by the FISA Amendments Act of 2008. The expiration followed an 11 June 2026 motion in the U.S. House of Representatives, brought to the floor by Speaker Mike Johnson under suspension of the rules, to extend Section 702 for three weeks (through 2 July 2026); the motion failed by 198 to 218, well short of the two-thirds majority required for suspension passage, with nineteen Republicans voting against and seven Democrats voting in favour.123 The principal Democratic objection, articulated by Senate Minority Leader Chuck Schumer and Senate Intelligence Committee Vice Chair Mark Warner, was directed at the administration’s plan to install Bill Pulte — the Director of the Federal Housing Finance Agency — as acting Director of National Intelligence in succession to Tulsi Gabbard, who announced her resignation as Director of National Intelligence in May 2026 effective 30 June 2026 citing her husband’s cancer diagnosis; Jay Clayton, who has served as U.S. Attorney for the Southern District of New York since April 2025 and as Chair of the Securities and Exchange Commission from May 2017 to December 2020, is the administration’s nominee for the permanent Director-of- National-Intelligence office.456 The Reforming Intelligence and Securing America Act of 2024 (Pub. L. 118-49) had reauthorised Section 702 with a two- year sunset to 20 April 2026; two clean short-term extensions thereafter, a ten-day extension enacted 17 April 2026 and a forty-five-day extension enacted 30 April 2026, bridged the program to the 12 June 2026 window.78

  1. Section 702 of FISA, 50 U.S.C. § 1881a, authorises the Attorney General and the Director of National Intelligence jointly to authorise targeting under § 1881a(a) of “persons reasonably believed to be located outside the United States to acquire foreign intelligence information,” subject to the procedures, certifications, targeting and minimisation requirements at § 1881a(b) through (e) and the Foreign Intelligence Surveillance Court’s review of certifications and procedures under § 1881a(j); the Reforming Intelligence and Securing America Act of 2024 added query-procedure requirements for U.S.-person identifier queries, including the approval-by-supervisor-or-attorney requirement for FBI queries. The statute by its terms sunsets without reauthorisation; the FISC may not issue new § 702 certifications after the sunset, although directives issued before the sunset can in principle remain in effect up to one year from issuance under § 1881a(a).9710

  2. The constitutional authority for foreign-intelligence collection rests on the President’s Article II authority over foreign affairs and intelligence, but the statutory framework Congress has built — beginning with FISA in 1978, expanded by the Protect America Act of 2007 and the FISA Amendments Act of 2008 — substantially channels that authority through procedures requiring FISC review, targeting certifications and minimisation. President Trump told reporters on 12 June 2026 that he was considering an executive order to address the lapse, saying “Congress wants me to do it” and “Let’s see what happens”; an unnamed senior administration official subsequently told reporters that an executive order will not be used to restore the program because it cannot recreate the statutory authority that Section 702 provides.1112 The Executive Branch has historical authority for foreign- intelligence collection under Executive Order 12333 of 4 December 1981 (Reagan), as amended, but EO 12333 operates outside the FISC review structure and does not provide the legal framework for the compelled-assistance provisions that § 702 carries for U.S. electronic communication service providers.131415

  3. The Pulte-Clayton dispute that drove the congressional impasse reflects a broader conflict over the structure of the Office of the Director of National Intelligence. The Office of the Director of National Intelligence was established by section 1011 of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458) codified at 50 U.S.C. § 3023. The Director is nominated by the President and confirmed by the Senate under § 3023(b); the Federal Vacancies Reform Act of 1998 at 5 U.S.C. §§ 3345-3349d governs the acting-officer mechanism for vacancies in the office. Pulte’s designation as acting Director of National Intelligence while simultaneously serving as the Director of the Federal Housing Finance Agency is unusual; Democratic senators have framed the appointment as inconsistent with the Senate-confirmable nature of the office and have conditioned their support for Section 702 reauthorisation on withdrawal of the Pulte appointment.16175

  4. The Section 702 lapse has limited near-term operational effect because FISC-approved directives issued before 12 June 2026 remain in effect up to one year from issuance under § 1881a(a), but the program cannot accept new certifications, new targeting authorisations or amendments to existing certifications during the lapse. The constitutional separation-of-powers question — what foreign-intelligence collection authority the Executive Branch may exercise under Article II independent of statutory grant — was last comprehensively litigated in United States v. United States District Court (“Keith”), 407 U.S. 297 (1972), which held that the warrant requirement applied to domestic-security electronic surveillance; subsequent foreign-intelligence cases recognising a “foreign intelligence exception” to the warrant requirement have not resolved the scope of Article II foreign-intelligence collection authority in the absence of statutory framework. The expiration is the first lapse of Section 702 in the program’s eighteen-year history.181920

Footnotes

  1. U.S. House of Representatives, Roll Call vote of 11 June 2026 on the motion to suspend the rules and pass the three-week extension of Foreign Intelligence Surveillance Act Section 702 reauthorisation through 2 July 2026; motion brought to the floor by Speaker Mike Johnson; final tally 198 yeas, 218 nays, with nineteen Republicans voting against and seven Democrats voting in favour. The motion required a two-thirds majority for passage under House Rule XV. https://clerk.house.gov/Votes/2026 ↩

  2. 50 U.S.C. § 1881a (Procedures for targeting certain persons outside the United States other than United States persons). https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section1881a&edition=prelim ↩

  3. FISA Amendments Act of 2008, Pub. L. 110-261, 122 Stat. 2436 (10 July 2008), enacting § 702 of the Foreign Intelligence Surveillance Act. https://www.govinfo.gov/content/pkg/PLAW-110publ261/pdf/PLAW-110publ261.pdf ↩

  4. Director of National Intelligence Tulsi Gabbard announced her resignation in May 2026 effective 30 June 2026, citing her husband’s cancer diagnosis. President Trump announced on 2 June 2026 that he would install Bill Pulte as acting Director of National Intelligence in succession; CNBC and UPI reporting of 2 June 2026 confirm the announcement. https://www.cnbc.com/2026/06/02/intelligence-trump-bill-pulte-tulsi-gabbard.html ↩

  5. William J. Pulte, Director of the Federal Housing Finance Agency since March 2025 under the Housing and Economic Recovery Act of 2008 (Pub. L. 110-289); announced by President Trump on 2 June 2026 as acting Director of National Intelligence in succession to Tulsi Gabbard, with Pulte continuing concurrently as FHFA Director. https://www.fhfa.gov/about/leadership/william-j-pulte ↩ ↩2

  6. Jay Clayton, U.S. Attorney for the Southern District of New York since April 2025 (nominated by President Trump in March 2025 and serving under appointment); Chair of the Securities and Exchange Commission from May 2017 to December 2020; nominated by President Trump as permanent Director of National Intelligence in 2026, pending Senate Select Committee on Intelligence consideration and Senate confirmation. https://www.justice.gov/usao-sdny ↩

  7. Reforming Intelligence and Securing America Act of 2024, Pub. L. 118-49, 138 Stat. 862 (20 April 2024); two-year reauthorisation of Section 702 with sunset 20 April 2026; query-procedure changes including supervisor-or-attorney approval requirement for FBI U.S.-person identifier queries. https://www.govinfo.gov/content/pkg/PLAW-118publ49/pdf/PLAW-118publ49.pdf ↩ ↩2

  8. Clean ten-day extension of Section 702 enacted on or about 17 April 2026 and clean forty-five-day extension enacted on or about 30 April 2026 (specific Pub. L. numbers and Statutes at Large pages from the govinfo PLAW collection). The two short-term extensions bridged Section 702 from the 20 April 2026 RISAA sunset through the 12 June 2026 expiration window addressed by the 11 June 2026 suspension motion. https://www.govinfo.gov/app/collection/plaw/119/public ↩

  9. 50 U.S.C. § 1881a procedural architecture: § 1881a(a) (targeting authorisation; directive duration up to one year); § 1881a(b) (targeting procedures); § 1881a(c) (certifications); § 1881a(d) (minimisation procedures); § 1881a(e) (querying procedures, including U.S.-person identifier-query restrictions added by RISAA 2024); § 1881a(j) (Foreign Intelligence Surveillance Court review of certifications and procedures). https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title50-section1881a&edition=prelim ↩

  10. Foreign Intelligence Surveillance Court review under 50 U.S.C. § 1881a(j); FISC review of § 702 certifications and procedures. The FISC may not issue new § 702 certifications after the statutory sunset. https://www.fisc.uscourts.gov/ ↩

  11. President Donald J. Trump remarks to reporters on 12 June 2026 on the prospect of an executive order to address the Section 702 lapse, including “Congress wants me to do it” and “Let’s see what happens.” Reporting via The Hill, 11 June 2026 (Trump comments delivered ahead of the dateline). https://thehill.com/homenews/administration/5920854-section-702-fisa-congress/ ↩

  12. Unnamed senior administration official to The Washington Times, 12 June 2026, indicating that the administration does not plan to issue an executive order to restore Section 702 because an executive order cannot recreate the statutory authority. https://www.washingtontimes.com/news/2026/jun/12/white-house-aide-trump-cant-single-handedly-restore-fisa-spy-power/ ↩

  13. Executive Order 12333 of 4 December 1981, “United States Intelligence Activities,” 46 Fed. Reg. 59941 (8 December 1981), as amended (most substantively by Executive Order 13470 of 30 July 2008). The historical framework for U.S. intelligence-community activities outside the FISC structure. EO 12333 governs collection of foreign intelligence under Article II authorities but does not provide for compelled assistance from U.S. electronic communication service providers. https://www.archives.gov/federal-register/codification/executive-order/12333.html ↩

  14. Foreign Intelligence Surveillance Act of 1978, Pub. L. 95-511, 92 Stat. 1783 (25 October 1978); the foundational statutory framework for foreign-intelligence electronic surveillance with FISC review. https://www.govinfo.gov/content/pkg/STATUTE-92/pdf/STATUTE-92-Pg1783.pdf ↩

  15. Protect America Act of 2007, Pub. L. 110-55, 121 Stat. 552 (5 August 2007); temporary expansion of FISA authorities to address foreign-targeted communications routed through U.S. infrastructure, superseded by the FISA Amendments Act of 2008. https://www.govinfo.gov/content/pkg/PLAW-110publ55/pdf/PLAW-110publ55.pdf ↩

  16. Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. 108-458, 118 Stat. 3638 (17 December 2004); § 1011 established the Office of the Director of National Intelligence; codified at 50 U.S.C. § 3023. https://www.govinfo.gov/content/pkg/PLAW-108publ458/pdf/PLAW-108publ458.pdf ↩

  17. Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345-3349d (governance of acting-officer designations for Senate-confirmable executive-branch positions). https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title5-section3345&edition=prelim ↩

  18. United States v. United States District Court (Keith), 407 U.S. 297 (1972); the Court held that the warrant requirement applies to domestic-security electronic surveillance, declining to recognise an inherent presidential exception under Article II. https://supreme.justia.com/cases/federal/us/407/297/ ↩

  19. Foreign-intelligence exception to the warrant requirement; recognised in lower-court decisions including United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), and In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002), but not directly addressed by the Supreme Court. https://www.fisc.uscourts.gov/sites/default/files/Opinions%2002.pdf ↩

  20. The 12 June 2026 expiration of Section 702 is the first lapse of the program since its enactment by the FISA Amendments Act of 2008; prior reauthorisation cycles in 2012, 2017, and 2018 were completed before the underlying statutory sunsets; the 2024 RISAA short-window reauthorisation set the stage for the 20 April 2026 sunset and subsequent short-term extension that lapsed 12 June 2026. ↩

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