REP. JIM HIMES IS MISLEADING HIS COLLEAGUES THAT THEY HAVE TO REAUTHORIZE FISA IN ORDER TO AVOID DAMAGING NATIONAL SECURITY. WE EXPLAIN WHY THAT’S NOT TRUE.
On April 20, 2026, the Foreign Intelligence Surveillance Act statute’s most controversial provisions are due to lapse once again. Every time there’s a pending sunset (in 2012, 2015, 2019, 2024 and now 2026), the administration and surveillance hawks rush to Congress, insisting that Congress must reauthorize the statute without reforms before it lapses, so that America will not be left dangerously exposed. The result? Congress has often gotten stampeded into reauthorizing FISA and kicking the question of reforms down the road.
This time, House Intelligence Committee Chair Rep. Jim Himes (D-CT-04) has revived the allegation that failing to do a “short-term reauthorization” of the statute, meaning in his mind a full 18 months, will “place our national security in peril by allowing the program to expire.” Is that true?
The short answer is “No.” Congress can take all the time it needs.
This is why: A lapse in the authorizing statute, Title VII of FISA, on April 20, doesn’t mean that collection shuts down at midnight on April 21. The FISC certification that is already scheduled to issue this month will extend through to March 2027, and the government can continue collection as long as the certification lasts. The New York Times confirms,
“The Section 702 program would not immediately shut down if the statute expired. It operates under certifications that the Foreign Intelligence Surveillance Court issues each year authorizing the government to direct communications companies to participate. The key provision says these directives “shall continue in effect” until their expiration dates.”
During the lapse debate in 2024, one provider had a mistaken belief that collection would no longer be mandatory if the statute had lapsed. But NSA promptly corrected that before there was a lapse, sending the provider the information about the certification continuing, and as a consequence of that communication, told the Biden administration that “the threat of cutting off … is off the table.” So, if this administration is genuinely worried, all they need to do is inform the providers again, not stampede Congress into an unnecessarily hurried renewal.
The appropriate action for the administration here is not to scaremonger to Members about whether collection will continue in the context of a lapse, but to reassure them that data collection will continue, as a matter of both law and fact. Congress in fact has plenty of time to thoroughly debate the pros and cons of these suggested reforms, and can do so after a statutory lapse if need be.
House Members and Senators should also not rely on any promises by leadership to bring FISA reform legislation to the floor later, in exchange for supporting a clean reauthorization now. Trusting those promises in 2024 did not lead to any problems with RISAA getting fixed, or any new reforms becoming law.
First, in 2024, Speaker Johnson told House Members during the FISA debate that he would not allow the Fourth Amendment Is Not For Sale Act’s warrant protections for Americans’ data to be offered even as an amendment to RISAA. He promised in return that there would be a floor vote on it – and there was, and it passed. But the fact that he had detached it from a must-pass bill, as he well knew, meant that reformers lacked crucial leverage to get the Senate to take it up, and the Senate did not in fact take it up. The net effect of his promise was that these crucial protections did not become law, even though a majority of Republicans and a majority of the House supported them.
A similar thing also happened in the Senate. RISAA contained a large and extremely worrying expansion of surveillance collection, the “ECSP provision”, which allowed NSA to secretly tap into an enormous array of American business networks under this authority. In order to dissuade Senators from amending RISAA to address this matter, and therefore extending debate past the sunset date, Senator Warner promised his colleagues that SSCI would report an ECSP fix out to the floor, and that he would press HPSCI to do the same. Two years later, this has not been done. A fix to ECSP is in all of the reform bills (SAFE, PLEWSA and GSRA) introduced this session.
We therefore urge Members that making FISA reforms part of the process of reauthorizing the FISA statute, is critical to passing any of them into law.