Congress has two months to decide whether a controversial surveillance law at the heart of Edward Snowden’s leaks should be abolished, renewed or reformed.
Administrations from both parties have taken a leading role in criticizing the Foreign Intelligence Surveillance Act (FISA), which generally aims to stifle reform talks. However, Trump officials were absent from a hearing on the subject on Wednesday.
The silence continued Thursday as President Donald Trump’s nominee to become director of the National Security Agency dodged a question about FISA reforms during a confirmation hearing.
The White House says it is working behind the scenes, but the administration’s lack of a public position has drawn criticism from Democrats. Even the Republican chairman of the Senate Judiciary Committee, Senator Chuck Grassley of Iowa, appeared to express frustration with the no-show during his confirmation hearing.
“If the government wants to inform us in an open or closed environment, I will help set this up,” he said. “In the meantime, the Senate Judiciary Committee must make progress.”
Asked for comment, the White House declined to explain why the administration was absent.
“The administration is engaged in productive discussions,” the White House said in an unsigned statement.
Grassley and other lawmakers are working to renew Section 702 of FISA ahead of the April 20 deadline.
Warrant for ‘Backdoor’ search?
This provision allows the FBI and other agencies to sift through a vast amount of apparently “foreign” intelligence collected when NSA spymasters point their collection tools abroad. However, these “foreign” communications include large amounts of information sent to and from Americans.
Civil liberties advocates have long tried to force agents at the FBI and other entities to obtain a court-approved warrant before conducting “backdoor” searches for information on U.S. subjects.
In 2024, they came within a single vote of achieving their goal, when a bipartisan coalition united to support a command requirement. The effort in the House of Representatives failed, but supporters of Section 702 were forced to agree to a short-term extension that expires this year.
Since the last debate, the attorneys’ case has been strengthened by a federal court ruling that the FBI violated one man’s rights by conducting a warrantless search of a Section 702 database.
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 a protective order. His nominees for top posts also lined up last year to oppose further reforms during confirmation hearings.
Trump’s nominee to serve as NSA director, Lt. Gen. Joshua Rudd, gave few indications about his position on the issue during testimony before the Senate Intelligence Committee on Thursday.
Sen. Ron Wyden, D-Ore., asked him if he would support a command requirement, with exceptions for emergencies and “four-alert crisis situations.”
Rudd dodged the question.
“Well, Senator, that’s a subject that I would have to research and gain a better understanding of in order to give you a more comprehensive and complete answer,” he said. “Once again, what I want to emphasize, however, is the great confidence that the men and women of the NSA are committed to protecting the civil liberties and privacy of American citizens.”
During the separate Senate Judiciary Committee hearing, experts from both sides gave their opinions on the controversial law — but no one from the administration was present to answer questions.
“We are three months away from the expiration of Section 702 and the Trump administration, as far as I can tell, still has no official position on it. That’s stunning,” said Sen. Chris Coons, D-Del., who voted to extend the law in its current form in 2024.
Joe Biden’s administration aggressively lobbied lawmakers for months to support a renewal of the law without change during that go-around.
Coons, for his part, said he didn’t know how he would ultimately vote on the issue this year.
“Kick the can?”
Democrats who voted for the law two years ago are facing increasing pressure this year — including from primary opponents — to support a warrant requirement now that the Trump administration has stripped privacy protections.
To complicate matters further, Republicans who voted for reform under Biden could return to supporting sweeping executive branch powers now that Trump is president.
There are other supervisory powers that can play a role in the innovation debate. Civil liberties advocates are also concerned about a separate provision introduced in 2024 that would allow the government to force data centers — and, critics fear, anyone with a computer — to hand over data to the government.
Jake Laperruque, deputy director of the Security and Surveillance Project at the nonprofit Center for Democracy and Technology, said he was concerned that lawmakers might be tempted to approve another short-term extension during an election year.
“It’s an open question: Are we going to get a reform vote on this in the next few months, or is Congress going to try to clamp down on this?” he said.
The Trump administration’s quiet stance may reflect internal debates, Laperruque said.
“I think there’s probably a lot of internal uncertainty about how exactly they’re going to deal with this,” he said, “and I think they’d rather not deal with it until they have a permanent position.”
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