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A report compiled by the Republican majority members of the US House Intelligence Committee says that agents of the Federal Bureau of Investigation should be required under the law to obtain a “probable cause warrant” before scouring the database of a controversial foreign intelligence surveillance program for information related to domestic crimes.
The Section 702 program, authorized under the Foreign Intelligence Surveillance Act (FISA), has a history of being abused by the FBI, the Intelligence Committee says, necessitating a “complete review” of the program and “the enactment of meaningful reforms.”
The program, which targets the communications of foreigners overseas with the compulsory assistance of US telecom providers, has been the target of significant scrutiny on Capitol Hill, with federal lawmakers frequently airing concerns about its capacity to be turned against the American public, whose texts, emails, and internet calls are collaterally intercepted by the US National Security Agency in unknown quantities each year.
The Intelligence Committee report, first obtained by WIRED, labels the program as essential to combating nuclear proliferation and thwarting terror attacks, adding that it has also been employed successfully in investigations of ransomware targeting US infrastructure, war crimes by Russian soldiers in Ukraine, and the “malign investments” of hostile actors that pose key economic security risks to the United States and its allies.
Still, the program, according to the committee's majority party, has been “abused by those who swore to support and defend the American people—in particular, the FBI.”
“Our report outlines reforms necessary for FISA's reauthorization," says representative Mike Turner, the Intelligence Committee's chair, while claiming the US is currently “at its greatest risk of a terrorist attack in nearly a decade.” Adds Turner: “We cannot afford to let this critical national security tool expire.”
In total, the House Intelligence Committee lists 45 “improvements” that it wishes to include in coming legislation that would enable the 702 program to continue, including criminal liability for 702 leaks involving an American's communications; enhanced penalties for federal employees who violate FISA procedures; and a new court-appointed counsel able to scrutinize FISA application by the government aimed at surveillance of a US citizen.
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The report was finalized by a working group composed of three Republican members: Turner, who hails from Ohio, and representatives Darin LaHood and Brian Fitzpatrick of Illinois and Pennsylvania, respectively. The working group stresses that federal courts have time and again ruled the 702 program constitutional—when its procedures are not skirted by negligent employees and willful violators for nefarious or self-serving means.
The FBI and the Biden administration at large have lobbied Congress to reauthorize the 702 program as is, ignoring calls for reform that have grown louder since the beginning of the year, manifesting this month in the form of a comprehensive privacy bill—the Government Surveillance Reform Act—legislation that likewise seeks to impose warrant requirements on the FBI, which at present can conduct searches of 702 data without a judge's consent, so long as it's “reasonably likely” to find evidence of a crime.
FBI director Christopher Wray, speaking before the House Homeland Security Committee on Wednesday, denounced plans to impose a warrant requirement under 702, calling it a “significant blow” to the bureau's national security division.
“A warrant requirement would amount to a de facto ban,” Wray says, noting the FBI would often be unable to meet the legal standard necessary for the court's approval, and that the processing of warrants would take too long in the face of “rapidly evolving threats.”
The report goes on to detail “significant” violations at the FBI, most previously reported to the Foreign Intelligence Surveillance Court (FISC) in 2022, before they were made known to the public in May. The majority of the incidents—including one in which an FBI analyst conducted “batch queries of over 19,000 donors to a congressional campaign”—took place prior to a package of “corrective reforms” that the FBI is crediting with practically curing its compliance issues.
The report attributes “most” misuses of 702 data to “a culture at the FBI” wherein access was granted to many “poorly trained” agents and analysts with few internal safeguards. As one example, it states that FBI systems for storing 702 data had not been designed to make employees “affirmatively opt-in” before conducting a query, “leading to many inadvertent, noncompliant” issues of the system. “It also seems that FBI management failed to take query compliance incidents seriously,” the report says, “and were slow to implement reforms that would have addressed many of the problems.”
Nevertheless, the committee says the FBI “realized the depth and breadth of its issues” and has begun implementing serious reforms on its own—including, among other measures, additional guidance for employees, ample system modifications, and heightened oversight in the form supervisory reviews by FBI legal experts and senior executives. The committee, nonetheless, notes that the FISC—albeit somewhat “encouraged” by recent improvements—has found the bureau's noncompliance with 702 procedures “persistent and widespread,” warning that it may become necessary to significantly curtail its employees' access to raw foreign intelligence in the future.
“The FBI has a history of abuse regarding the querying of Section 702 information,” the report says, adding that reforms soon to be advanced by the intel committee would see the number of FBI employees with access to the data cut by as much as 90 percent.
Citing “insufficient oversight and supervision” at the FBI, the committee says it should be prepared to audit every query targeting a US person “within 6 months” of the search, and House and Senate leaders should be notified at once when and if an FBI analyst queries a term that might "identify a member of Congress.”
“The American people deserve a law that protects them from both governmental overreach and security threats,” the report says. “Section 702 must be reauthorized, but it also must be reformed.”
