by Anthony W. Accurso
Ahead of the possible expiration of Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) on December 31, 2023, an explanation about the FBI’s controversial access to communications collected under this authorization was published by Lawfare, a non-partisan, non-profit multimedia publication.
For context, Section 702 of FISA allows the intelligence community to collect communications of foreign surveillance targets (emails, phone calls, etc.), but this material can include communications between the foreign targets and U.S. citizens or permanent residents whose communications are protected by the Fourth Amendment. Capturing the latter is “accidental,” as intelligence agents cannot always distinguish between protected and unprotected communications based on the limited information available.
The FBI has come under intense criticism after a May 2023 opinion from the FISA Court exposed that the “FBI improperly used the 702 database 278,000 times” when it looked for information on “crime victims, suspects in the January 6th insurrection, and people arrested at protests stemming from the police killing of George Floyd in 2020.” Following the disclosure, there is unprecedented bipartisan criticism in Congress of Section 702 and the federal agencies associated with it.
The explanation about the FBI’s procedural shortcomings and oversight comes via Lawfare’s Glen S. Gerstell, former general counsel of the NSA from 2015 to 2020. He discussed how the intelligence community has required the FBI to tighten up procedures for accessing information in the Section 702 database since late 2021. Released statistics from December 1, 2021, to November 30, 2022, show a dramatic decrease in FBI access to the database in general and only one instance of a known access violation.
When searching the database in 2022, which contained communications relevant to 246,000 foreign surveillance targets, the FBI received communications pertaining to 7,900 targets. In order to obtain this information, it generally has to demonstrate the request is germane to a “fully predicated national security investigation” such as “foreign computer intrusions, international terrorism, or foreign generated espionage or sabotage.” To search the 702 database today, an agent must “opt-in” and provide their justification for the search. It is no longer a default database included in general searches.
Two exceptions to the requirement of proving an ongoing national security investigation are to (1) demonstrate that the search is relevant in “certain situations involving mitigating or eliminating a threat to life or serious bodily harm” or (2) where an investigation into a purely domestic crime demonstrates an international connection (i.e., “an agent investigating a domestic bank robbery had a specific factual basis to believe that the suspect had been boasting about his crime to an international terrorism target under Section 702 surveillance”).
In order to conduct a search under the latter provisions, “the FBI must obtain a specific order from the [FISA Court] before looking at the contents of communications in the 702 database.”
Audits regarding the FBI’s access performed by the Office of the Director of National Intelligence (“ODNI”) and the Department of Justice are known as the Annual Statistical Transparency Report. The most recent report showed that the FBI conducted searches using “119,383 unique query terms,” and “only 16 were used in searches having as their sole purpose to return evidence of a crime.” Of the 16, only “one was used in connection with a predicated criminal investigation that did not relate to national security, for which a FISC order should have been obtained.” It further noted that “no such order was obtained, and that was an error.”
Since the policy change in late 2021, FBI agents can only search the 702 database if they have “completed the mandatory training on the requirements for doing so, and have completed the annual expanded query training.”
It is a step in the right direction for the ODNI to force the FBI to comply with the law and take preventative steps to curb abusive access to this database of incredibly sensitive information, and accountability reports are pretty close to being transparent. But the question is whether it took too long for the intelligence community to get their house in order. If the authorization for Section 702 lapses at the end of the year, as Congress is likely to allow, in part because of the FBI’s previous abuses, the intelligence community will lose access to a tool they have claimed is crucial to national security and which saves lives.
However, it is this author’s opinion that if the agencies didn’t want their tool taken away from them, they should have limited access exclusively to explicitly legal queries from the beginning, instead of allowing years of FBI abuses.
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