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FBI Searches of NSA Data Extended Until April, Despite Admission of Unconstitutionality

by Anthony W. Accurso

As part of the National Defense Authorization Act for fiscal year 2024, signed by President Biden on December 22, 2023, Congress has extended the deadline to April 19th to fully re-authorize, or modify, the FBI’s legal authority to search through NSA data collected without a warrant.

The NSA collects data about communications that occur outside the U.S., but it collaterally collects data on U.S. residents when such persons are part of the communication with a foreign national. Normally, the FBI, which is tasked with catching domestic criminals, cannot get access to the communications of a U.S. resident without a warrant. But Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) has allowed the FBI to meet a much lower standard for running searches against the NSA’s data, access which the FBI has said is critical to deter threats to American security.

Several scathing reports have surfaced showing that the FBI has abused this access, and some of these abuses have been wielded against persons of importance to the Republican party. As a result, several Republicans called for the end of Section 702 entirely and intended to allow the authorization to expire at the end of 2023.

Some privacy-oriented Democrats, led by Oregon Senator Ron Wyden, have argued for a qualified reauthorization, which would require the FBI to obtain a warrant any time it needs to access the data, bringing it in line with constitutional requirements imposed on the FBI for access to all other private communications. However, President Biden and FBI Director Christopher Wray have both argued against a warrant requirement, and Wray appeared before Congress to argue for unqualified reauthorization.

“To be sure, no one more deeply shares members’ concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection, using U.S. person identifiers, than I do,” said Wray. “A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time—which, in the world of rapidly evolving threats, the government often does not have.”

This statement by director Wray is deeply problematic for primarily two reasons. First, it is an admission that, in most cases, the FBI’s purpose in accessing this data does not meet constitutional standards. Second, the agency is complaining about a lack of resources just after being caught wasting resources by abusing its access. Any reasonable accounting could infer that the time and man hours saved by not conducting unreasonable searches, where the agency lacks probable cause, could be applied effectively to the few cases where a warrant is actually justified to help advance U.S. security.

The temporary reauthorization signed in December only delayed expiration of the program until April 2024, and then, there won’t be an omnibus military spending package to allow for further delays. The FBI will likely have to accept further restrictions on its access or forgo it entirely.  



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