US surveillance law will expire for the first time after lawmakers rejected Trump’s controversial pick to lead spy agencies

The House of Representatives failed to renew the US government’s warrantless surveillance law before it expired on Friday, ensuring it will lapse for the first time, as lawmakers protest the appointment of a controversial Trump ally to oversee US intelligence agencies.

The House of Representatives voted 218 to 198 on the bill, which needs a two-thirds majority to pass; 19 Republican representatives voted against it. According to Politico, the next vote is scheduled for June 23.

The Espionage Act, officially called the Foreign Intelligence Surveillance Act (FISA), broadly allows US intelligence agencies to collect vast amounts of information, including information about Americans, to identify potential foreign hackers, spies and terrorists. Also known as Section 702 due to its place in the law books, this regulation has been considered critical to national security by both Democrats and Republicans for years.

Bipartisan efforts to renew the decades-old Espionage Act have faltered in recent weeks, with lawmakers only able to pass short-term extensions to continue negotiations.

Critics are demanding comprehensive reform of the Foreign Intelligence Surveillance Act, pointing to violations of the law by several previous US administrations. Lawmakers from both parties have sought provisions requiring spy agencies to first obtain a court-approved warrant before allowing them access to Americans’ private communications, although the Trump administration has been calling for a clean reauthorization of the law.

But a new obstacle appeared last week for the Trump administration, when the president appointed one of his allies, Bill Bolt, to the position of acting director of US National Intelligence. This Cabinet-level position oversees more than a dozen government spy agencies, including the CIA and the National Security Agency.

The appointment raised fears that Bolte would use his position to attack Trump’s political opponents and topple the top intelligence office he would oversee. Politico reported that Bolte’s appointment was a “clear sign of the recent mood” inside the White House, describing Trump as becoming increasingly isolated and driven by grievances.

Democrats had warned that appointing Bolte would pose a greater risk to American national security than allowing the law to expire, according to the Washington Post.

Bolte, who has no intelligence or national security experience, was scheduled to begin his position on June 19, in addition to his current position as head of the US Federal Housing Agency. But on Thursday, the administration withdrew Bolte’s nomination, replacing him in the position with Jay Clayton, who is currently the US Attorney for the Southern District of New York and was previously Chairman of the Securities and Exchange Commission.

But by the time news of Clayton’s appointment emerged, many lawmakers had already left D.C. for a week-long vacation, making a last-minute deal to save FISA unlikely.

Fiber cable tapping and technology giants

Section 702 of the Foreign Intelligence Surveillance Act (FISA) received significant attention during the 2013 surveillance scandal involving the National Security Agency and several close US allies. Edward Snowden, the former NSA contractor turned whistleblower, leaked thousands of documents to journalists, revealing the scope of the US’s global surveillance operations, which also included Americans even though they were supposed to be largely constitutionally exempt from US surveillance.

Using programs authorized under Section 702, the NSA used these legal powers to collect large amounts of the world’s communications flowing through undersea fiber-optic cables, which form the backbone of the Internet. The NSA also gained access to vast swaths of user data from tech giants such as Apple, Facebook, Google and Microsoft under a program dubbed PRISM.

While the law itself expires on Friday, the US government’s spying powers or programs are unlikely to stop any time soon.

The spyware authorized under the Foreign Intelligence Surveillance Act (FISA) was actually approved in March as part of the annual certification process by the Washington, D.C.-based Foreign Intelligence Surveillance Court, which oversees government surveillance programs and secretly hears surveillance requests. US authorities can still use their own surveillance tools under the Foreign Intelligence Surveillance Act until March 2027, allowing many of the government’s mass surveillance programs to continue operating.

But phone companies that provide rolling records of calls their customers make to the government may be unwilling to share this information without a clear law allowing them to do so, according to Reuters.

However, the US government has other surveillance avenues it can resort to, such as Executive Order 12333, which allows the government almost unrestricted powers to conduct surveillance around the world.

Lawmakers from both parties continue to warn about FISA violations regardless. Earlier this year, Senator Ron Wyden, a longtime senior Democrat on the Senate Intelligence Committee, warned that FISA was still being actively used to secretly violate Americans’ constitutional rights.

Wyden, who reads into classified matters but cannot discuss them publicly, said lawmakers likely did not realize that several U.S. administrations had relied on a secret interpretation of Section 702, which “directly impacts the privacy rights of Americans.”