Controversial Warrantless Spying Law Expiring Soon and Trump Officials Didn’t Show For a Hearing on It

Congress has two months to decide whether to abandon, renew, or reform a controversial surveillance law at the heart of Edward Snowden’s leaks.

Administrations of both parties have taken a lead role in jockeying over the Foreign Intelligence Surveillance Act, or FISA, typically working to tamp down reform talk. Trump officials, however, were absent at a hearing on the subject Wednesday.

The silence continued Thursday, when President Donald Trump’s nominee to serve as National Security Agency director dodged a question about FISA reforms at a confirmation hearing.

The White House says it is working behind the scenes, but the administration’s lack of a public stance has garnered criticism from Democrats. Even the Republican chair of the Senate Judiciary Committee, Sen. Chuck Grassley of Iowa, seemed to express frustration with the no-show at his hearing.

“If the administration would like to brief us in an open or closed setting, I will help work to set it up,” he said. “In the meantime, the Senate Judiciary Committee needs to move ahead.”

Asked for comment, the White House declined to explain why the administration was absent.

“The administration is having productive discussions,” the White House said in an unsigned statement.

Grassley and other lawmakers are working ahead of an April 20 deadline to renew FISA’s Section 702.

Warrant for “Backdoor” Search?

The provision allows the FBI and other agencies to search through a massive trove of ostensibly “foreign” intelligence gathered when NSA spymasters point their collection tools abroad. Those “foreign” communications, however, include large quantities of information sent from and to Americans.

Civil liberties advocates have long sought to force agents at the FBI and other entities to obtain a court-approved warrant before conducting “backdoor” searches for information on American subjects.

They came within a single vote of achieving their aim in 2024, when a bipartisan coalition banded together to support a warrant requirement. The push failed in the House of Representatives, but Section 702 supporters were forced to agree to a short-term extension that expires this year.

Since the last debate, the advocates’ case has been bolstered by a federal court opinion finding that the FBI violated one man’s rights by searching a Section 702 database without a warrant.

Trump has at times lashed out at FISA because a separate provision of the law was abused to improperly spy on an adviser to his 2016 presidential campaign. When push came to shove during his first term, however, the Trump administration supported a renewal of the law without warrant protections. His nominees for top posts also lined up to oppose further reforms during confirmation hearings last year.

Trump’s nominee to serve as NSA director, Lt. Gen. Joshua Rudd, gave little indication as to where he stood on the issue during testimony before the Senate Intelligence Committee on Thursday.

Sen. Ron Wyden, D-Ore., asked him whether he would support a warrant requirement, with exemptions for emergency, “four-alarm crisis” situations.

Rudd sidestepped the question.

“Well, senator, that is a topic I would need to look into and get a better understanding of to give you a more fulsome and complete answer on that one,” he said. “Again, what I would highlight though is supreme confidence that the men and women of the NSA are committed to protecting civil liberties and privacy of American citizens.”

At the separate Senate Judiciary Committee hearing, experts on both sides opined on the controversial law — but no one from the administration attended to answer questions.

“We are three months from the expiration of Section 702 and the Trump administration, as best as I can discern, still has no official position on it. That is stunning,” said Sen. Chris Coons, D-Del., who in 2024 voted to extend the law in its current form.

Joe Biden’s administration aggressively lobbied lawmakers for months to support a renewal of the law without modification during that go-around.

Coons, for his part, said he did not know how he would ultimately vote on the issue this year.

“Kick the Can?”

Democrats who voted for the law two years ago are under increasing pressure this year — including from primary opponents — to support a warrant requirement as the Trump administration erases privacy protections.

To make matters more complicated, Republicans who voted for reforms under Biden could flip back to supporting sweeping powers for the executive branch now that Trump is president.

There are other surveillance powers that could figure into the renewal debate. Civil liberties advocates are also worried about a separate provision created in 2024 that allows the government to force data centers — and, critics fear, anyone with a computer — to hand records over to the government.

Jake Laperruque, deputy director of the security and surveillance project at the nonprofit Center for Democracy and Technology, said that he was concerned legislators may be tempted to approve another short-term extension during an election year.

“It’s an open question of, are we going to get a reform vote on this in the next couple months, or is Congress going to try to kick the can?” he said.

Trump administration’s silent stance may reflect internal debates, Laperruque said.

“I think there’s probably just a lot of internal uncertainty on how exactly they are going to come down on this stuff,” he said, “and I guess they would rather not engage until they have a set position.”