A controversial surveillance law is set to expire at midnight after a dizzying few weeks of failed efforts by Congress and the White House to renew it and prevent a loss of access to critical national security information.

It is the first lapse of the spy program, known as Section 702 of the Foreign Intelligence Surveillance Act (FISA), since it was passed into law in 2008. It enables U.S. intelligence agencies to gather without a warrant the digital communications of foreigners overseas.

Congressional lawmakers labored for months to strike a deal that would satisfy privacy and civil liberty advocates on both sides of the aisle, with the Senate closing in on legislation that was anticipated to gain bipartisan support.

But negotiations were upended last week when President Donald Trump announced federal housing official Bill Pulte would serve as the acting director of national intelligence. Pulte, who has no military or intelligence experience, previously gained notoriety for targeting the president’s critics with mortgage fraud accusations and probes.

The appointment enraged Democrats and blindsided Republicans. On Thursday, the House tried to pass another short-term extension, falling well short of the necessary votes before members left town on recess until June 23. The Senate also tried and failed to fast-track a renewal of Section 702 but failed.

Trump eventually said he would nominate Jay Clayton to be the next permanent DNI. Clayton, a federal district judge in New York, previously chaired the Securities and Exchange Commission.

The news was welcomed by key Democrats, including Sen. Mark Warner (VA), the ranking member on the Senate Intelligence Committee.

 “... While I am glad to see the president finally come to his senses, before the Senate can take up a FISA extension there needs to be a clear guarantee that Mr. Pulte will not serve as acting DNI,” he cautioned in a statement.

The Intelligence panel has slated Clayton’s confirmation hearing for next week and Majority Leader John Thune (R-SD) has publicly indicated he intends to move as fast as possible to confirm him.

With a lapse imminent, the spy program won’t shut down completely. In March, an intelligence court approved the FISA program to continue for another year, likely meaning existing 702 orders would continue but the government could not seek any new ones. However, even that interpretation could be challenged in court.

A key unanswered question is if major U.S. communications providers would stop complying with court orders under Section 702.

For some telecommunications companies “it's not a huge push for them, I think they don't mind participating, as long as they get indemnification,” Warner, a former telecom executive, told reporters Thursday. “If the indemnification goes away? That's why we've always tried to not get into this territory of having it expire.”

At the eleventh hour of the last FISA renewal push in 2024, two service providers informed the National Security Agency they would opt out of the program if it expired.

“I don’t know,” Warner said when asked if any companies had indicated they wouldn’t comply this time around.

Any such standoff would likely end up in court, as happened in 2008, after a judge ruled that Yahoo didn’t have to adhere to the law that preceded Section 702. The matter was eventually resolved in the government’s favor, but only after several months of legal wrangling.

For now, the spy program, which provides more than half of the president’s daily intelligence briefing, will begin to roll up.

Jon Darby, NSA’s former director of operations, lamented the outcome.

Section 702 authority “underpins much of this nation's most important foreign intelligence. There are numerous safeguards in place to prevent its misuse and while it is a good idea to continually review and, if necessary, modify the safeguards, letting the authority lapse is irresponsible and dangerous,” he said. 

“We will have less insight into threats around the world such as Iran, China, Russia, and terrorists who may be targeting the World Cup,” he added. “The nation is less safe without FISA Section 702."

Jake Laperruque, deputy director for the Center for Democracy and Technology’s Security and Surveillance Project, called the lapse “an inexcusable failure by Congressional leadership, a colossal own-goal that's occurred entirely because they refuse to allow votes on reform. And while the law is crystal clear in that ongoing operations don't change, this is an issue that needs to be addressed.”

He accused the administration and lawmakers of “muzzling votes on reform and pushing an extension of the status quo that a strong bipartisan majority rejected, repeating the same failed plan over and over and hoping for a different result. It's time to get serious, and allow votes on reforms that we need to fix FISA, make it safe from abuse, and finally get this done.”