A key U.S. spying program expires Friday night. What does that mean?

The intelligence-gathering program that allows U.S. government surveillance of foreigners abroad by collecting domestic communication information is set to expire at the end of the day Friday after the House and Senate left town without passing an extension.

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This will be the first time the law, Section 702 of the Foreign Intelligence Surveillance Act, has lapsed since the counterterrorism and counterespionage measure was passed in 2008. What that means for the ability of intelligence agencies to gather key information is a huge open question.

What is FISA Section 702?

FISA Section 702 authorizes the warrantless surveillance of foreigners abroad through the collection of information from domestic communications systems with the assistance of service providers.

The program can only target foreigners located outside of the United States who are expected to possess, receive or communicate foreign intelligence information. The surveillance authority is controversial, however, because of the possibility that U.S. citizens’ communications with targeted foreigners could be swept up incidentally, potentially violating their rights.

How did Congress get here?

The House passed a three-year extension of FISA Section 702 in late April, but included an unrelated amendment — a provision to ban the Federal Reserve from issuing digital currency — that Republicans added to win over conservative holdouts.

The Senate did not take up that bill, instead passing a 45-day extension of the program without the digital currency ban the next day, which the House then also approved. That gave Congress until Friday to work out a path forward on FISA.

On Thursday, however, the House failed to pass a short-term extension of the program through July 2. Seeing no path forward without even a simple majority of support for the measure, House Republicans adjourned for a previously scheduled recess until June 23.

Later Thursday, Senate Republicans made two unsuccessful attempts to pass a short-term extension of the spying program, which would not have mattered even if the measures had passed because the House had already adjourned. The Senate then followed suit, leaving town for the weekend, and will return Monday.

Another Senate bill that would extend Section 702 for three years and make some changes to the program is expected to have enough bipartisan support to pass, but it is being blocked by Democratic senators.

Why was the FISA extension blocked?

Democrats have objected to any extension of FISA Section 702 because of their concerns over President Donald Trump ’s appointment of top housing official and close ally Bill Pulte as the acting director of national intelligence, replacing outgoing intelligence chief Tulsi Gabbard. They argue that Pulte, who does not have any intelligence experience, could try to use the surveillance authority to target the president’s perceived political enemies. As director of the Federal Housing Finance Agency, Pulte has pursued mortgage fraud investigations into several high-profile Democrats.

Trump’s announcement Thursday that he was nominating Jay Clayton , the U.S. attorney for the Southern District of New York, to be the permanent national intelligence director came only after the House and Senate had left town. While many key Democrats said they supported Clayton’s nomination, that did not translate into their lifting their hold on proceeding to a FISA extension.

The Senate Intelligence Committee’s scheduling of Clayton’s confirmation hearing for Wednesday, however, could mean that he will be confirmed quickly, as Pulte is not supposed to start his acting role until two days later.

Does the program go dark when it expires?

Republicans who want to extend Section 702 have said letting it lapse is, as Senate Majority Leader John Thune, R-S.D., put it, “going to shut the lights off on this program and put at risk the American people.” But the program is operating under a yearlong certification from the Foreign Intelligence Surveillance Court that does not expire until March 2027. Some legal experts said that means the warrantless foreign surveillance program can continue without congressional approval.

“The law is clear that these certifications, and the directives issued to companies under them, are grandfathered; they remain valid until their expiration date, even if the underlying statute expires,” the Brennan Center for Justice, a public policy and legal center, said in a one-page analysis .

Sen. Mark Warner, D-Va., the vice chair of the Intelligence Committee, agreed that the FISA court’s certification could allow the program to continue, but he said companies could be concerned that they would be sued if Congress fails to extend Section 702.

While the certification runs through March, Warner said, “What we believe, and we’ll see, and what we were told in 2024 when we were racing to get it done by midnight, is that the communication providers — the telcos and the Googles and the others — if they don’t come carry the indemnification that the law provides them, they won’t provide this information. So, we don’t know the answer to that, but it is obviously a high-risk proposition.”

Could an executive order protect companies from lawsuits?

It’s unclear whether Trump could issue an executive order that would legally protect the companies against lawsuits for complying with orders from intelligence agencies to provide information.

“I don’t know whether an executive order, whether the telcos will continue with the question, as some of them, it’s not a huge push for them,” Warner said. “I think they don’t mind participating as long as they get indemnification. If the indemnification goes away — that’s why we’ve always tried to not get into this territory of having it expire.”

When asked about the possibility of an executive order, House Speaker Mike Johnson, R-La., told NBC News that Congress needed to pass a short-term extension.