FISA 702 Just Lapsed. Your Phone Wires Are Still Tapped

A professional microphone in a recording studio with pop filter, the kind of gear the NSA has been pointing at your phone for years — Photo via Unsplash

TL;DR: Section 702 of FISA, the warrantless surveillance authority that lets the NSA tap foreign communications routed through U.S. providers and lets the FBI search the resulting database for Americans' messages without a warrant, hit its statutory expiration at 12:00 a.m. Eastern on Saturday June 13. The House rejected a three-week extension on the night of June 11. There is no bill with the votes to pass both chambers. The headline every cable news chyron is running is a political moment, not an operational shutdown. The Foreign Intelligence Surveillance Court renewed the program's annual collection certifications back in March 2026, and those run through approximately March 2027. The wiretaps keep running on the second clock. The political class spends the weekend arguing about the first.

What Happened Last Night

On the night of June 11, with the deadline hours away, the House voted down a three-week extension of Section 702. The New York Times reported the vote shortly after 11:44 p.m. Eastern, under a headline that conceded the obvious: the law was on track to lapse. The Senate had already failed to break its own procedural logjam on June 5, when a 47-52 cloture vote fell short of the 60 votes needed. There is no compromise bill. There are no public negotiations in progress. There is a statute that is now, as of midnight, no longer on the books.^[1][2]

The Verge's lead, written by the policy desk and published the same evening, cuts to the part the rest of the coverage keeps skipping. The headline: "A warrantless wiretap law is about to expire, but surveillance networks aren't actually 'going dark.'" The story is the disconnect between the political ritual and the operational reality.^[1]

Tech Times ran the same framing with a different verb tense. "Section 702 Expires Tonight: Warrantless NSA Surveillance Runs Through 2027 Anyway." The Cato Institute, the libertarian civil liberties shop that has been pushing the warrant requirement for years, celebrated the lapse as overdue and inevitable. "FISA Section 702 Lapse Assured, Thankfully."^[3][4] EPIC, the privacy advocacy group that has been in court against the program since the 2008 statute replaced the Protect America Act, framed the moment the other way: "FISA Section 702 Almost Certain to Expire After House Votes Against Extension." The subhead: "EPIC Continues to Urge Reforms."^[5]

Read those four headlines together and the story is clear. The political class is treating midnight Friday as the deadline that matters. The civil liberties and policy world is treating it as the deadline that does not matter, because the second clock is still ticking.

Day 4 Update (June 16, 2026): Thune Breaks From Trump on the Vehicle

Last updated June 16, 2026. This section tracks the procedural fight that has played out in the four days since the statute lapsed. The political-economy read is below; the operative content above (the FISA Court mechanic, the FBI query loophole, the 2018 precedent) is unchanged.

Day 4 of the lapse brings the second structural change in four days. Senate Majority Leader John Thune (R-SD) publicly told The Hill on the evening of June 15 that the Senate will move a standalone FISA 702 reauthorization bill, refusing President Trump's demand to pair the program with the SAVE America Act voter-ID package. Thune's quote, to The Hill's Julia Mueller and Rebecca Beitsch: "Not realistic."^[12] The procedural story has flipped twice since the lapse: first the Cotton-Grassley executive-order fallback surfaced on Day 3, now the Thune standalone-bill move on Day 4. The Cotton-Grassley text has not been made public.^[13]

Three threads are now in play at the same time. (1) The Senate Intelligence Committee is moving standalone FISA 702 as the procedural vehicle. The committee has not yet released text. The Hill, Roll Call, The Center Square, Punchbowl News, and Democracy Docket all carried the Thune story in the six hours after the quote landed.^[12]^[13]^[14]^[15]^[16] (2) The Cotton-Grassley executive-order fallback, which surfaced on Day 3, would let the NSA keep "non-content" metadata collection running under existing authority. It is still the White House's preferred workaround, and its text has not been released. (3) The civil-liberties position is unchanged: the EFF published "The 702 Ultimatum: Warrant Requirement or Bust" on June 10, formally declaring that a standalone Senate vehicle without a warrant requirement is unacceptable.^[17]

For the wire on your wall, none of this changes anything. The Foreign Intelligence Surveillance Court's March 2026 collection certifications still run through March 2027. The FBI backdoor-search authority, the "about" collection that incidentally sweeps up Americans' communications, the provider-directive regime for Verizon, AT&T, and the rest of the carriers: all of it keeps running on the second clock described above. The political fight is now about the reauthorization vehicle and the warrant requirement. The surveillance is still on autopilot. For the Day 3 procedural timeline (the Cotton-Grassley EO draft, the FISA Court silence, the White House silence), see the companion piece linked in the Related Coverage section below. For the AI-scope fight and the FISA Court certification mechanic, see the deep-dive in the same list.

Watch items for the next 72 hours. Any one of these will trigger a follow-up: (a) the Senate Intelligence Committee text surfaces publicly; (b) Trump escalates to a public veto threat or a public order to the DNI; (c) the House attempts another vehicle that includes a warrant amendment; (d) the Cotton-Grassley executive-order text leaks. The procedural fight will not resolve before the G7 finance ministers' meeting later this week, and the SAVE America Act pairing is functionally dead on the Thune quote, but the White House has not publicly backed off, so the procedural fork is open.

The Mechanic That Makes the Lapse Mostly Theater

Section 702 of FISA is not one authority. It is two clocks running on different timers, and only one of them is set by Congress.

The first clock is the statute. Section 702 is an authority Congress must periodically renew. The current authorization ran out at 11:59 p.m. Eastern on Friday June 12. That clock stopped.

The second clock is the Foreign Intelligence Surveillance Court certification calendar. Under Section 702(i) of FISA, 50 U.S.C. § 1881a(i), the Attorney General and the Director of National Intelligence jointly authorize surveillance of non-U.S. persons reasonably believed to be located abroad. The FISA Court's role is limited to reviewing the certifications and the targeting procedures, not the individual surveillance decisions themselves. Each certification is annual. Once the FISA Court signs off, the program runs against the certified providers for the full certification period.^[6]

The government was scheduled to renew its certifications in March 2026. It did. A one-pager from the Brennan Center for Justice, published June 9, 2026 and written by the Liberty and National Security Program team, states the implication plainly: "Section 702 surveillance will continue until March 2027 even if the statute lapses." Communications providers that received Section 702 directives under the existing certifications remain obligated to comply with those directives, and the legal immunity shield that protects them for past compliance is unaffected. A legal analysis from Wiley, the telecom-focused law firm, published April 28, 2026, lays out the operational impact for carriers: "communications providers operating under existing Section 702 directives may continue to receive and respond to such directives...even in the absence of statutory reauthorization."^[6][7]

This is not a fringe legal theory. The 2018 lapse ran on the same mechanic, and the courts and the intelligence community have had eight years to test it. The Wiley analysis is mainstream carrier-side counsel, not an advocacy brief. The Brennan Center is not anti-surveillance. They are stating what the law actually says.

This Is Not 2018. It Is 2018 on a Much Longer Timer.

The most recent comparable lapse was December 31, 2017 to January 19, 2018, a 19-day gap closed when President Trump signed the FISA Amendments Reauthorization Act. The deeper story of 2018, which the breathless countdown coverage of June 12 mostly skips, was that the gap had no measurable effect on intelligence collection. The underlying FISC certifications kept running on the targets they already covered. New collection on new foreign targets was the part that paused, and the intelligence community has never publicly said how much real-world impact that pause had.^[8]

June 2026 is a different beast. The statute is set to lapse for a much longer window, possibly weeks, possibly months, possibly until the next Congress. The same certification mechanic applies. The same legal logic holds. The same operational pattern is the most likely outcome, on a much longer timeline.

The Brennan Center's June 9 analysis is explicit about the runway: even in the worst case, where the statute expires and the FISA Court eventually exhausts the existing certifications, the operational runway runs to March 2027. Congress will not have an emergency in June. It will have a slow-bleed deadline in late winter, the kind that lets everybody forget the political stakes and punt again.^[6]

Which is exactly the point. The deadline is theater, and the theater runs long enough that the substantive debate never has to happen.

What the Lapse Actually Changes (and What It Doesn't)

Here is the honest breakdown of what does and does not change at 12:00 a.m. on June 13.

Does not change: Collection of new foreign targets under the existing March 2026 FISA Court certifications. Continuing FBI queries of the Section 702 database for Americans' communications, which the FBI runs roughly tens of thousands of per year under the so-called "702 query loophole." Existing provider directives requiring Verizon, AT&T, and other major carriers to assist with collection. The legal immunity those providers had for compliance, until the certifications themselves begin to expire, which they will not until early 2027. The "about" collection of Americans' communications that gets incidentally swept up when the NSA targets a foreigner who happens to email or call one. All of that continues. The Verizon switch in the basement does not care that Congress did its job badly.^[7]

Does change: The government's authority to add new foreign targets to the certification. The government's authority to issue directives to providers not yet covered. The clarity of the legal immunity shield for providers, which gets murkier the longer the statute lapses. The political urgency for Congress to do anything, which is exactly the problem. The intelligence community has warned that a multi-month lapse would create "significant operational gaps." That is true. It is also a slow-burn problem, not a sudden one. By the time the gaps are operationally meaningful, the political moment will be gone.^[7]

The key sentence in the Wiley analysis: the providers can keep complying with the existing directives even in the absence of statutory reauthorization. That is the load-bearing fact of the day.

The Reform Coalition Is Not Waiting

The civil liberties and good-government groups that have spent years pushing for a warrant requirement for FBI searches of Americans' communications seized the moment. EPIC, the Brennan Center, the Cato Institute, the Electronic Frontier Foundation, and the Free Press coalition are all publicly pushing the same three demands:

1. No reauthorization without a warrant requirement for FBI backdoor searches. The "702 query loophole" is the part of the program that lets the FBI search the Section 702 database for Americans' messages without a warrant, a practice that has exploded in volume since 2018. EFF, EPIC, and the Brennan Center have been pushing for a warrant requirement since the last reauthorization fight. This is the moment to land it.^[5][6]

2. An explicit AI-scope amendment. Section 702 was drafted in 2007 and last substantively reauthorized in 2018. It does not mention artificial intelligence. The FBI is already using AI tools to enrich, summarize, score, and link Section 702 collection. A December 15, 2025 Brennan Center analysis by Amos Toh laid out the gap in detail. The reform ask: a clause that says the FBI cannot use AI tools to infer, profile, or generate investigative leads on Americans from Section 702 collection without a warrant.^[9]

3. Sunset the data broker loophole. Several pending amendments would close the carve-out that lets the FBI purchase Americans' communications data from data brokers as a workaround for the Fourth Amendment. EFF and the Brennan Center have both been pushing this for years.

None of these reforms are on the table in either chamber. That is the part the deadline theater is hiding.

The Cotton-Grassley-Rubio Plan B

Senate Intelligence Committee Chairman Tom Cotton (R-Ark.) and Judiciary Committee Chairman Chuck Grassley (R-Iowa) are reportedly drafting a fallback executive order with Secretary of State Marco Rubio that would attempt to keep the Section 702 program running administratively if the statute lapses, by re-asserting the certification authority under other national security statutes.^[10]

The plan is untested. No president has previously tried to run a lapsed FISA program on a different statutory authority. The legal theory is contested, and the privacy groups tracking the issue, EPIC most vocally, are already promising court challenges if the order is signed.^[5][10]

The more likely outcome is a continuing resolution that extends Section 702 for another short window, probably 30 to 90 days, with no reforms, and the FISC certifications carry the program through that window. The Cotton-Grassley plan is the nuclear option. The short extension is the default option. The warrant requirement is not on the table. The AI-scope amendment is not on the table. The data broker loophole is not on the table.

If Cotton and Grassley get their way, the program runs on autopilot through March 2027 with no reforms and no warrant requirement. The deadline theater happens, the surveillance continues, and the next time the statute comes up, the same dynamic plays out. The Cato Institute's framing of the lapse is the most honest: "FISA Section 702 Lapse Assured, Thankfully." The "thankfully" is doing work. The lapse is the only moment of pressure that creates any chance of reform.^[4]

What You Can Do Today

Call your senators today. 5Calls has a live FISA 702 campaign with current Senate phone numbers and a one-line script. The script that matters: ask your senators to oppose any reauthorization that does not include a warrant requirement for FBI searches of Americans' communications. Anything else is a permission slip.^[11]
Specifically call Senate Democrats. The 47-52 cloture vote on June 5 failed because seven Republicans withheld support, not because of a Democratic blockade. The pressure point is with moderate Democrats who could flip yes on a bill that includes a warrant requirement. If you live in a state with a moderate Democratic senator, your call has outsized weight.
Push for the AI-scope amendment. The longer-term story is not the deadline. It is whether the FBI can run AI tools against incidentally collected Americans' communications. The Brennan Center's December 2025 analysis is a good briefing to send to your senators' staff.^[9]
Forward the Brennan Center one-pager. A one-page document, dated, sourced, downloadable, that says exactly what is and is not happening at midnight. The cable news graphics are misleading by omission. The Brennan Center one-pager is the clean rebuttal.^[6]
Watch the FISA Court certification calendar. If the statute lapses and the FISA Court quietly renews the March 2026 certifications without public notice, that is the story. The court's orders are technically public, but they are not announced. The privacy bar (the people who actually read FISC orders for a living) is your early-warning system.
Do not let the deadline framing win the news cycle. The Verge is the only major outlet that framed the lapse correctly on day one. Read it, share it, and tell your friends: the statute lapsed, the wiretaps did not.^[1]

The Bottom Line

Section 702 lapsed at midnight. The surveillance did not. The FISA Court renewed its annual certifications in March 2026, and those carry the program through March 2027. The political class will spend the weekend arguing about the statute. The intelligence community will spend the weekend doing what it has been doing, on autopilot, on a clock that runs on FISC orders, not on Congressional votes.

The story that should be getting the attention is the AI-scope fight. Section 702 was written before the current generation of AI tools existed. The FBI is already using them against incidentally collected Americans' communications. No reform is on the table. No reform has been on the table for nine years. The March 2027 certification runway makes it easy to keep not having the fight.

The statute lapsed Friday. The warrant requirement dies another year. The cable news graphics will move on by Monday. The microphone pointed at your phone does not move on at all.