FBI Encourages Use of Controversial Surveillance Program Despite Misuse
by Jo Ellen Nott
A top FBI official is urging his agents to continue using a warrantless foreign surveillance program, Section 702, to justify the bureau’s surveillance powers. This program, which has been misused to target U.S. protesters, journalists, and a sitting member of Congress, was extended by lawmakers for two more years on April 19, 2024, with weak new procedures to prevent abuse. Section 702, part of the Foreign Intelligence Surveillance Act (“FISA”), allows the government to compel American companies to eavesdrop on various communications without a warrant, provided that at least one party is a foreigner outside the U.S. The program has faced widespread criticism for its potential overreach and privacy violations.
In 2021, the FBI reported 2.9 million searches of Americans’ communications through the program. Following changes in counting methodology, that number dropped to 119,383 in 2022 and 57,094 in 2023. That counting methodology can be seen as somewhat misleading. When it was changed, it allowed for multiple searches of one data point, such as a telephone number, to be counted as one search. Section 702 provisions call that a “unique search.”
However, as WIRED and other groups concerned with Fourth Amendment protections emphasize, the number of noncompliant searches is impossible to calculate without knowing the exact number of queries. On the low end, the FBI has conducted more than a thousand searches in violation of its own policies.
The new procedures of requiring opt-in for wiretaps and pre-approval for sensitive queries were deemed sufficient safeguards by the House Intelligence Committee, led by Chair Mike Turner (R-Ohio) and Ranking Member Jim Himes (D-Conn.). Both lawmakers played key roles in preserving the FBI’s access to 702 data. Critics of the extension, the Reforming Intelligence and Securing America Act (“RISSA”), say the reauthorization does “everything but reform Section 702 of the Foreign Intelligence Surveillance Act (FISA).”
Of great concern to supporters of personal privacy and civil liberties is that RISSA “greatly expands the government’s authority by allowing it to compel a much larger group of people and providers into assisting with this surveillance.” Amendments passed in the reauthorization added counternarcotics and the vetting of immigrants and those seeking asylum to the definition of foreign intelligence information. Amendments also subject more companies to turn over customer information in more instances.
In fact, tech industry and surveillance experts have raised alarms about the expanded scope of Section 702. A trade group representing major tech companies like Google and Amazon warned that the new language in the statute could dramatically increase the number of entities and individuals subject to surveillance orders. Senate Intelligence Committee Chair Mark Warner (D-Va.) acknowledged the need to clarify the language and committed to addressing it in future legislation. Despite the controversy surrounding 702, FBI Deputy Director Paul Abbate encouraged employees in an internal email on April 20, 2024, to use the program while ensuring compliance with legal requirements.
U.S. Rep. Zoe Lofgren (D-Calif.) reacted to Abbate’s email saying, “The deputy director’s email seems to show that the FBI is actively pushing for more surveillance of Americans, not out of necessity but as a default.” She added that this email directly contradicted assertions made by the FBI during debate over Section 702’s reauthorization.
The FBI likes to tout compliance but acknowledges misuse. Director Christopher Wray has emphasized the agency is reducing searches on Americans and improving compliance. However, a Justice Department review found a 98 percent compliance rate, indicating thousands of noncompliant searches. The FBI attributes many errors to employees failing to identify whether a search targeted a U.S. person.
The reauthorization of Section 702 highlights the tension between national security and privacy. The FBI considers Section 702 essential to its mission while critics call for stricter oversight and clearer legal boundaries to prevent abuse.
Sources: EFF, Wired
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