House Republicans have called on FBI Director Christopher Wray to provide a “detailed accounting” of every instance since 2019 that the agency has used warrantless surveillance authority to obtain information unrelated to national security, while accusing the FBI of “illegal spying activities.”
Section 702 allows the attorney general and the director of national intelligence to jointly authorize warrantless surveillance of non-U.S. citizens residing outside the United States, subject to certain constraints. These include requiring investigators to adopt “targeting procedures” to make sure the information obtained under Section 702 warrantless surveillance is indeed limited to noncitizens and to prevent the “intentional acquisition” of communications within the United States.
Section 702 also requires a FISA court order for a review of query results in criminal investigations that aren’t related to national security.
The FISC opinion, however, indicates that the FBI has used Section 702 authority to obtain information on Americans, including subjecting victims of a crime to the background search.
In one example cited by the court’s presiding judge, James Boasberg, an FBI task force officer conducted 69 queries that weren’t in line with the agency’s internal rules on how to conduct the searches.
“The Court continues to be concerned about FBI querying practices involving U.S.-person query terms, including (1) application of the substantive standard for conducting queries; (2) queries that are designed to retrieve evidence of crime that is not foreign-intelligence information; and (3) recordkeeping and documentation requirements,” Boasberg wrote.
The government also self-reported numerous incidents in which queries involving Americans were designed to return evidence of a crime completely unrelated to foreign intelligence without getting an order from the court. The same issues were found the previous year, “which suggests that similar violations ... likely have occurred across the Bureau.”
Boasberg’s overview of the FBI’s use of FISA was written on Nov. 18, 2020, although it was just released to the public last week.
Jordan, ranking member on the House Judiciary Committee, and Biggs, ranking member of the Subcommittee on Crime, Terrorism, and Homeland Security, cited a number of examples from the court opinion and highlighted its conclusion that “the Court is concerned about the apparent widespread violations.”
The pair said in their letter that the FISC opinion “only raises more questions about the FBI’s respect for the constitutional and statutory parameters” of the FISA law, and has “serious” implications for Americans’ civil liberties.
They called on Wray to explain why, a year after the OIG report, the court opinion “found the FBI to still be abusing its warrantless surveillance authority.”
The Republican lawmakers also demanded Wray give a detailed accounting of every time since the OIG report’s release in December 2019 that “the FBI has queried, accessed, otherwise used information obtained pursuant to Section 702 for purposes unrelated to national security.”
They concluded by asking Wray to explain what steps the FBI has taken to ensure the agency doesn’t overstep its Section 702 authority to probe American citizens.
An FBI spokesperson confirmed to The Epoch Times that Wray has received the letter, while a senior FBI official said the agency has taken numerous steps in the past 18 months to facilitate compliance with the Section 702 query procedures, including modifying multiple systems to better help staff meet relevant legal requirements.
The official said this includes additional documentation requirements to make sure personnel have thought about the querying standard and are able to justify why they think it has been met, mandating new guidance and training for all FBI staff with access to Section 702-sourced information, while cutting off untrained personnel from such information.
Most of the objectionable Section 702 query incidents referenced in the court opinion took place prior to implementation of the FBI’s system changes and training, the official added, which is consistent with the court opinion.
The senior official added that, due to COVID-19, the FBI hasn’t fully assessed the efficacy of those changes, but that the agency remains “committed to getting this right.”
“The FBI is dedicated to full adherence with FISA’s requirements and to keeping the American people safe from national security threats,” the official said.
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