Section 702 of The Foreign Intelligence Surveillance Act, which authorizes the warrantless data gathering of the NSA, is scheduled to expire on New Year’s Eve. Lawyers for the executive branch have concluded that FISA Section 702 surveillance can continue legally until the 26th of April 2018. The rationale boils down to a technicality. As the FISA Amendments Act states that orders issued under 702 can last for a year, and NSA’s last year-long certification was issued on the 26 of April 2017.
If the argument persists, it will please officials that are concerned that surveillance will either have to be dismissed or continue on questionable legal grounds. That is entirely possible when Congress is presently focused on pushing through its tax plan, and it might not significantly proceed with the House or Senate bills renewing Section 702 until the new year. An extension could provide them months to prepare for the probabiliy that the program might wind down, which would force them to conduct more targeted espionage.
Whether or not that is a sincere concern is a separate matter. Senator Ron Wyden informed the New York Times that various security agencies have a habit of waiting “until the last minute” to dispute an expiry, knowing that they can increase the specter of national security threats to get what they desire. A technical extension might provide them room for a proper debate. However, it could also lead to more stalling. It is no secret that intelligence officials aspire to make Section 702 permanent. It would not be surprising if officials continue to be quiet until the spring.