The Trump administration has decided that the National Security Agency and the F.B.I. can lawfully keep operating their warrantless surveillance program even if Congress fails to extend the law authorizing it before an expiration date of New Year’s Eve, according to American officials.
National security officials have implored Congress for the past year and a half to extend the legal basis for the program, Section 702 of the FISA Amendments Act, before it lapses at the end of the month. They portrayed such a bill as the “top legislative priority” for keeping the country safe.
But with Congress focused on passing a major tax cut and divided over what changes, if any, to make to the surveillance program, lawmakers may miss that deadline. Hedging against that risk, executive branch lawyers have now concluded that the government could lawfully continue to spy under the program through late April without new legislation. Intelligence officials nonetheless remain intent on getting lawmakers to pass a durable extension of Section 702 by the end of the month — warning that even a stopgap short-term extension of several months, as some lawmakers have proposed, would risk throwing the program into a crisis in the spring.
“We fully expect Congress to reauthorize this critical statute by the end of the year,” said Brian Hale, a spokesman for the Office of the Director of National Intelligence. “Not doing so would be unthinkable in light of the considerable value Section 702 provides in protecting the nation.” The expiring law grew out of the Bush administration’s once-secret Stellarwind warrantless surveillance program after the Sept. 11 attacks. After it came to light, Congress enacted the FISA Amendments Act of 2008 to legalize a form of the program.
Under Section 702, the N.S.A. and the F.B.I. may collect from domestic companies like AT&T and Google the phone calls, emails, texts and other electronic messages of foreigners abroad without a warrant — even when they talk with Americans. The program has expanded to a broad array of foreign intelligence purposes, not just counterterrorism.
If Congress fails to reauthorize the law this month, Mr. Hale acknowledged that the government believes it can keep the program going for months. Its reasoning centers on a legal complexity in how the program works: Under the law, about once a year, the secretive Foreign Intelligence Surveillance Court sets rules for the program and authorizes it to operate for 12 months.
The court last issued a one-year certification on April 26. That matters because a little-noticed section of the FISA Amendments Act says that orders issued under Section 702 “shall continue in effect until the date of the expiration.” Mr. Hale said the provision, which is recorded in federal statute books as a “transition procedures” note accompanying the main text of the law, makes it “very clear” that “any existing order will continue in effect for a short time even if Congress doesn’t act to reauthorize the law in a timely fashion.”
Given that conclusion, the government is making no plans to immediately turn off the program on New Year’s Day, no matter what happens in Congress, according to a United States official familiar with the Section 702 program who spoke on the condition of anonymity to discuss a sensitive topic. The disclosure has significant ramifications for the debate over the program.
Congressional leaders have discussed including an extension of the program in other must-pass legislation, like a spending bill to keep the government from shutting down. But lawmakers will face less pressure to jam through such a move, short-circuiting a full and open debate over reform proposals, if the alternative is not an immediate termination of the collecting of intelligence authorized by the law.
Little consensus exists in Congress about what, if any, changes to make to the law as part of extending it. Lawmakers have submitted legislation spanning the gamut from making the law permanent without changes to imposing significant new limits to safeguard the privacy rights of Americans whose communications get swept up in the program, as well as a range of intermediary proposals.
One key disagreement centers on what limits, if any, to impose on how government officials may search for, gain access to or use in court information about Americans that gets swept into the warrantless surveillance program. Some lawmakers want to impose a broad provision forcing officials to get a warrant before they may query the repository about an American. Some want a more limited requirement that officials get a court’s permission to gain access to the results of such a query if it is for a criminal investigation but not a national security one. Some want to impose no new constraints.
Another major issue confronting lawmakers is what to say, if anything, about the N.S.A.’s old practice of collecting, from network switches on the internet’s backbone, international emails and other such messages that mention a foreigner who is a target of surveillance but are neither to nor from that person. The N.S.A. recently halted that practice but wants to retain the flexibility to turn it back on; some bills would codify a ban on it, and some would not.
The question of a Section 702 overhaul, and trade-offs between national security powers and privacy protections, has scrambled the usual party lines. Representative Robert W. Goodlatte of Virginia, the Republican chairman of the Judiciary Committee, has warned that legislation whose changes fall short of a compromise bill that he worked out with Democrats on his committee is unlikely to pass the House.
In an interview, Senator Ron Wyden, an Oregon Democrat, declined to comment on the government’s theory, but said he was open to making it possible to have a full and open debate over the proposed changes to the surveillance law early next year if time runs out this month. “We’ve seen this movie before: wait until the last minute, and then say, ‘crowded congressional calendar, dangerous world, we’ve just got to go along with it,’” Mr. Wyden said. “Anything now that creates an opportunity for several months of real debate, I’ll listen to."
Either way, the United States official said the executive branch and the courts would still need a durable new version of the law well before the late-April deadline. The problem, the official said, is that it will take a significant amount of time to develop new procedures based on the new law, submit them to the Foreign Intelligence Surveillance Court, make changes the court wants and then work with communications companies to implement the new certifications.
Mr. Hale declined to comment on those specifics, but said that a gap in the surveillance program’s legal authorization would generate uncertainty. “So while the orders would be in effect for a short time after the end of the year, the fact is that we would need to be planning for the end of the program,” Mr. Hale said, “and that cannot be done in a matter of days — to effect that takes some time, and is not like turning on or off a light switch.”
Planning to turn off the Section 702 program, the other official said, would include steps to mitigate that change as much as possible, including by systematically going through the list of more than 100,000 foreigners abroad who are being targeted under the program and triaging which are the most critical, then developing lengthy packages of information to submit to the surveillance court to seek individualized orders to wiretap them.
But because of the resources such an effort would require and the higher legal standard the government would need to be able to meet, surveillance would ultimately cease on most of the Section 702 targets, the official added.
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