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.”