A much-anticipated report from the Office of the Director of National Intelligence revealed a 95 percent drop in the number of warrantless FBI searches of the communications of U.S. citizens from 2021 to 2022. However, that decline hasn’t dissuaded Congress from pursuing reform of Section 702 of the Foreign Intelligence Security Act (FISA), through which that data is collected.
Under standard surveillance law and even Title I of FISA, law enforcement and intelligence agencies are required to obtain a warrant and thus a show of probable cause to surveil Americans. However, Section 702, designed to subvert hostile foreign actors abroad, also allows the collection of data from U.S. citizens stateside if they have had communication with a foreign target.
Agencies such as the FBI can then search or query communications collected. While there is an expectation that these queries will be done for genuine national-security concerns, the FBI has abused the system, vetting persons such as pastors, office repairmen, participants in the FBI Citizens Academy, and even members of Congress through the database.
The exact number of such queries was 2,964,643 in calendar year 2021 and that number dropped to 119,383 in calendar year 2022, according to the report. In 2020, the number was 852,894.
For the Biden administration, the drop is vindication that it can rein in its own agencies. The report “aptly illustrates how built-in oversight that Congress put in the statute works to . . . repair trust and transparency,” one unnamed official told Politico. Internal reforms to discourage misuse of the database have included requiring agents to affirmatively opt-in to Section 702 searches and setting an upper limit on the number of search terms used at one time.
As further signal of a concern for civil liberties, President Joe Biden signed an executive order last month banning the U.S. government from using commercial spyware in a number of instances, though not all.
However, this decline in the numbers won’t deter members of Congress from pursuing reforms, like those being considered by the bipartisan FISA Working Group.
“It is incumbent upon Congress, not the Executive Branch, to codify reforms to FISA Section 702,” said House Intelligence Committee chairman Mike Turner (R., Ohio) and FISA Working Group leader Darin LaHood (R., Ill.) in a statement.
LaHood said he believes that he himself has been surveilled by the program, as reported earlier this year by the New York Times.
“Section 702 has identified threats to U.S. troops and disrupted planned attacks both at home and abroad, prevented components needed to build weapons of mass destruction from reaching foreign actors, and contributed to successful efforts against fentanyl production and processing equipment in Mexico. However, we must protect the American people’s privacy and civil liberties,” the pair wrote.
“Without additional safeguards, a clean reauthorization of 702 is a non-starter,” they added.
Senator Ron Wyden (D., Ore.) also released a statement asserting that his privacy concerns remain unaddressed.
“Today’s report highlights the urgent need for reforms to government surveillance programs in order to protect the rights of law-abiding Americans,” he said.