President Trump does not plan to use an executive order to extend the government’s power to spy on foreign targets, a legal authority that Congress allowed to expire Friday, an administration official told The Washington Times.
The official said an executive order would have “serious limitations” and could not fully replace the law.
The spy authority, known as Section 702 of the Foreign Intelligence Surveillance Act, is a 2008 law authorizing the government to monitor the communications of foreigners abroad without a warrant.
President Trump said Thursday that he might extend Section 702 through an executive order.
“Congress wants me to do it,” he said. “Let’s see what happens. It’s very important for our military.”
However, the official said the executive order could not provide 702 certifications, which are submitted by the attorney general and the director of national intelligence to allow surveillance of non-U.S. persons located abroad.
“An executive order cannot address the intelligence gaps that a lapse would potentially create and cannot grant the government authority to issue new certifications,” the official said.
The order would likely spur a stream of legal challenges. That’s because Section 702 is a federal statute enacted by Congress that imposes a legal obligation on telecommunications companies to comply with data demands. An executive order would also only apply to the federal government and cannot compel data collection from private companies.
Telecom companies could refuse new requests from the government because, without a statute such as 702, they would lose their legal immunity and be exposed to lawsuits.
“There is also nothing that can be done via an executive order to address the judicial challenges that would arise from a lapse in 702. Congress must take legislative action to prevent the risks that would arise from a lapse in 702,” the official said.
When Section 702 nearly expired in 2024, some service providers began refusing to comply with existing legal directives before it officially lapsed. While the Biden administration considered filing a motion with the FISA Court to compel telcom companies to comply, that process often takes weeks or months.
The House, in a 218-198 vote Thursday, rejected an extension of Section 702 through July 2. Both the House and Senate blocked renewal of the law over concerns about Mr. Trump’s selection of Bill Pulte as acting director of national intelligence.
Mr. Trump assured lawmakers that Mr. Pulte’s time in the role is temporary and on Thursday nominated Jay Clayton, the former chair of the Securities and Exchange Commission, to serve as permanent director of national intelligence. Mr. Trump did not announce in time to spur Democrats into renewing Section 702 before Congress left for the weekend.
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