According to a court opinion that was released on July 21 as part of a public records request, the Federal Bureau of Investigation (FBI) has improperly used its surveillance powers provided in Section 702 of the Foreign Intelligence Surveillance Act (FISA) and documented by the Foreign Intelligence Surveillance Court (FISC), which lets agencies collect swaths of emails and other communications.
The FBI employees were found to have spied on an unnamed U.S. senator, a state lawmaker, and even a judge. To defend their position on the allegations, they argued that Section 702 allowed them to spy on their "highest priority work," including China and Russia, as well as terrorism and cybersecurity threats, without needing to seek a warrant.
However, the provision is a clear invitation to collect information on Americans, regardless of if the reason for a probe is official or personal. The said surveillance tool, which allowed for warrantless spying on foreigners located abroad, has long been criticized as a backdoor tool for gaining information on Americans who may be communicating with those being surveilled.
Without naming names, the court document revealed that in June 2022, an analyst conducted four queries of Section 702 information using the last names of a U.S. Senator and a state senator, without further limitation. While the two were believed to be targets of "a specific foreign intelligence service," the National Security Division at the Department of Justice determined the FBI did not meet the needed standard for running such a query.
Also, in October of the same year, "a staff operations specialist ran a query using the Social Security number of a state judge who had complained to the FBI about alleged civil right violations perpetrated by a municipal chief of police," the opinion also included.
NBC News further reported that in 2023, U.S. spy officials have disclosed that the FBI improperly searched Section 702 databases for information related to the Jan. 6, 2021 "riot" at the U.S. Capitol and the 2020 protests following the police killing of George Floyd.
To the rescue was FBI Director Christopher Wray who said that reforms at the bureau had led to "significant improvement" and fewer incidents of not following intelligence rules. "We take seriously our role in protecting national security and we take just as seriously our responsibility to be good stewards of our Section 702 authorities," Wray said. "We will continue to focus on using our Section 702 authorities to protect American lives and keeping our Homeland safe while safeguarding civil rights and liberties."
American Civil Liberties Union's (ACLU)'s National Security Project deputy director Patrick Toomey called out to the House, pointing out that the latest errors show it is "long past time for Congress to step in." "The FBI continues to break the rules put in place to protect Americans, running illegal searches on public officials including a U.S. senator," argued Toomey. "As Congress debates reauthorizing Section 702, these opinions make clear why fundamental reforms are urgently needed." (Related: Whistleblower: Secret Service prevented the FBI from interviewing Hunter Biden.)
Renewal of FISA Section 702 faces bipartisan backlash in Congress
The irresponsible use of the surveillance power was revealed amid President Joe Biden's administration's efforts to renew the same FISA section which critics see as a "major spy program" that already faces bipartisan backlash in Congress. Section 702 is set to expire at the end of the year, and lawmakers on both sides of the aisle have said they will refuse to back its reauthorization without significant reforms.
FBI's Wray already sent a letter to House and Senate leaders on Friday noting that several different reviews found agents have complied with FISA guidelines at least 98 percent of the time. But in a call with reporters Friday, a senior FBI official said the agency is working on building trust with lawmakers who may feel personally impacted by the issue.
"We are communicating as much as we can to build that level of confidence so that they understand how we are using the tool and how we are holding people accountable for when they are not using the tool correctly. But also, to make sure they understand when we do and do not do such things as query members of Congress," the official told the Hill. "There was an unacceptably high level of noncompliance and various non-compliance… behavior that was going on." The representative added that they have been very open about how they have accepted the fact that that was unacceptable. "That is not what we expect from ourselves as an organization," the official added.
Meanwhile, the intel agency was said to have announced its new disciplinary measures, including immediate loss of access to surveillance data until the employees accused of negligence undergo training and meet with a bureau attorney.
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