FBI Shouldn't Be Allowed to Spy on Americans Without Court Approval: Watchdog

The FBI has been unable to prove that warrantless searches of the database for information on Americans have yielded 'unique value in criminal investigations.'
FBI Shouldn't Be Allowed to Spy on Americans Without Court Approval: Watchdog
FBI Director Christopher Wray prepares to testify before the House Homeland Security Committee in Washington on Nov. 15, 2022. (Chip Somodevilla/Getty Images)
Zachary Stieber

The FBI and other intelligence agencies should need court approval to access spy data on Americans, a watchdog says.

Congress should require authorization from the U.S. Foreign Intelligence Surveillance Court for analysts from the FBI and three other agencies to search for information on Americans in a vast database containing information collected through warrantless searches, the Privacy and Civil Liberties Oversight Board said on Sept. 28.

"The most critical safeguard for Americans’ privacy rights is to require individualized and particularized judicial review for all U.S. person query terms," the board said in a nearly 300-page report.

Sharon Bradford Franklin, a Democrat appointee who serves as chair of the panel, said that the FBI has repeatedly been unable to prove that the warrantless searches of the database for information on Americans have yielded "unique value in criminal investigations" and that evidence shows the bureau has "disturbing and continuing compliance violations" of rules governing the searches.

The FBI has implemented some changes but "the persistent pattern of FBI noncompliance over the years dramatically illustrates the need for independent, impartial, and external review," she said.

Under Section 702 of the Foreign Intelligence Surveillance Act, government agencies can spy without warrants on non-Americans believed to be located outside the United States. Communications and other information of Americans may be collected "incidentally" as a result. That information is compiled in a database that can largely be searched without court approval by the FBI, the CIA, the National Security Agency, and the National Counterterrorism Center.

The agencies can currently access data acquired through warrantless searches without a court order, despite repeated violations of rules concerning the access.

FBI workers have repeatedly failed to follow rules for using the database, including inappropriately searching for a U.S. senator and Jan. 6, 2021, protesters, courts and watchdogs have found.

Ms. Franklin and two other Democrat appointees voted to release the report. The two Republican appointees voted against releasing it.

While all of the board members say Section 702 is valuable and should be kept, they diverge on how to improve it.

The Republicans on the board, Beth Williams and Richard DiZinno, say the Foreign Intelligence Surveillance Court isn't the right body to review proposed queries. Instead, they propose agencies sending Congress reports on sensitive queries that have already been run, so lawmakers will "promptly be made aware of any potential misuses of the intelligence authority."

The Foreign Intelligence Surveillance Court said in an opinion unsealed in May that the FBI uses its own standards for Section 702 searches, with queries needing to be "reasonably likely" to retrieve foreign intelligence information or evidence of a crime.

But FBI workers were violating that standard, the court found.

That included violative searchers of information on suspected or confirmed Jan. 6 suspects, donors to a congressional campaign, and people involved in protests and riots that followed the killing of George Floyd in Minnesota.

The FBI has said it implemented reforms after the improper searches, including improving training of workers on how to properly access the database.

"The errors described in the Foreign Intelligence Surveillance Court’s opinion are completely unacceptable. As a result of the audits that revealed these instances of noncompliance, the FBI changed its querying procedures to make sure these errors do not happen again," a bureau spokesperson said previously.

According to data released earlier this year, 4 percent of recent queries violated the FBI's standards.

The privacy board said that searches for Americans' information "present some of the most serious privacy and civil liberties harms," noting that, except in limited circumstances, government officials don't need to show that an American they seek information on is suspected of wrongdoing.

The FBI's practices "pose the most significant threats to Americans' privacy," the board said. While there have been some reforms in recent years, members noted, they haven't sufficiently protected Americans' privacy and civil liberties.

The FBI's violative practices include never asking the Foreign Intelligence Surveillance Court for a warrant to search the database. There were six instances in 2021 and 2022 in which such an order was required, although FBI personnel failed to seek one.

The FBI has been conducting fewer searches but still conducts far more than the other agencies. In 2022, it carried out 119,383 searches for information on Americans, compared to 4,684 combined searches across the CIA, the National Security Agency, and the National Counterterrorism Center.

The board is part of the executive branch. It was established in 2007 on the recommendation of the 9/11 Commission.

Section 702 is currently scheduled to expire at the end of the year. Some lawmakers are trying to reform the law, which the White House opposes.

The FBI and the White House didn't respond to requests for comment on the new report.

Some Republicans have previously expressed support for requiring court approval to access the database, while some Democrats have said they are in favor of improving the protection of Americans' communications.

The last report from the privacy board on FISA came in 2014. At that time, the board unanimously approved 10 recommendations.

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