WASHINGTON – Growing anger at the FBI from both parties in Congress has become a major hurdle for U.S. intelligence agencies fighting to keep their vast powers to collect foreign communications that often sweep up the phone calls and emails of Americans.
Key lawmakers say they won't vote to renew the programs under Section 702 of the Foreign Intelligence Surveillance Act that expire at the end of this year without major changes targeting the FBI. Many blame problems with how the FBI's special agents search for U.S. citizens using Section 702 — along with publicly revealed mistakes in other intelligence investigations by the bureau.
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Among the revelations since the law was last renewed in 2018: The bureau misled surveillance court judges in seeking to wiretap a 2016 campaign aide for former President Donald Trump, and agents didn't follow guidelines in searching Section 702 databases for the names of a congressman on the House Intelligence Committee, a local political party, and people of Middle Eastern descent.
Two successive chief judges of the primary U.S. surveillance court criticized the bureau in written opinions, with one saying the frequency of mistakes in the bureau's investigation of Russian election interference “calls into question whether information contained in other FBI applications is reliable.”
The debate is of great consequence to U.S. intelligence officials, who argue that the law is perhaps their most critical tool to stopping terrorism, enemy spies, and cyberattacks. According to the intelligence community, 59% of the items in the briefing given daily to President Joe Biden last year featured information the National Security Agency captured under Section 702.
And the classified Pentagon documents leaked online in recent weeks make clear how much the U.S. relies on electronic snooping, with dozens of items on allies and foes alike sourced to what's known as “signals intelligence.”
“Section 702 has kept American citizens safe and our U.S. service members abroad out of danger,” said Rep. Mike Turner, the Ohio Republican who chairs the House Intelligence Committee, in a statement. "However, changes must be made in order to prevent further FBI misuse and abuse of this vital national security tool.”
Reps. Pramila Jayapal, D-Wash., and Warren Davidson, R-Ohio, issued a joint statement in March saying the FBI was searching for Americans “at an alarming scale” and calling for an overhaul of the program.
The FBI says it uses foreign communications for its national security investigations and tightly controls how agents access Americans' data. Bureau officials this week released a checklist their agents are supposed to use in conducting searches. They also have overhauled their computer systems and added new mandatory training for agents in December 2021.
Searches likely to bring back 100 or more results must now be cleared first with an FBI attorney, and the deputy director must personally approve what the FBI calls “certain types of sensitive queries,” including searches of U.S. public officials.
“Like any major institution, we have made mistakes,” FBI Director Chris Wray testified before Congress in March. “To me, the mark of a leading organization is not whether it makes mistakes or not ... but whether or not we learn from those mistakes. And I think we have.”
Rep. Jim Himes of Connecticut, the top Democrat on the House Intelligence Committee, said he supported the FBI's changes and wanted them to be included in a renewed surveillance law.
Himes argued some Republican critics were motivated by the investigations against Trump, including the search that the FBI conducted last year of his Florida residence.
“I think anger at the FBI has become an article of faith in the Republican conference,” he said in an interview.
Under Section 702, the U.S. collects foreign communications without a warrant — and with the required participation of American telecom companies — to create databases that analysts can search for intelligence purposes. They can target foreigners outside the U.S. for collection.
Agencies cannot target American citizens or foreigners on U.S. soil, or go after a foreigner with the purpose of collecting a U.S. citizen's emails or phone calls.
The FBI disclosed that it conducted as many as 3.4 million searches of Section 702 data for Americans in 2021 — a figure that dropped sharply to 204,000 last year, according to an annual report released Friday by the U.S. Office of the Director of National Intelligence.
The FBI said it introduced new counting methods for Friday’s report that lowered the 2021 and 2022 figures to about 3 million and 110,000, respectively, by removing duplicative searches.
The bureau said it had run only 16 searches between December 2021 and November 2022 to seek evidence of a crime without a foreign intelligence purpose.
But civil liberties advocates have long argued that the program may violate the Fourth Amendment by giving the FBI warrantless access to vast amounts of Americans’ communications.
Patrick Toomey, deputy director of the American Civil Liberties Union's National Security Project, said Section 702 has become “a domestic spying tool for the FBI.”
“The rules are extraordinarily permissive in practice, and yet FBI agents still regularly violate them,” Toomey said in an email. "Congress should require a warrant for these searches to protect Americans, because the FBI cannot be left to police itself.”
Some lawmakers also support requiring the FBI to get warrants for every search of Section 702 data. National security officials oppose a warrant requirement, saying it would flood courts with thousands of new cases and make many uses of the program impractical.
Majority Republicans on the House Intelligence Committee are instead pushing for new criminal penalties against agents who willfully provide false information to a surveillance court, according to multiple people familiar with their plans who spoke on condition of anonymity to discuss internal deliberations.
That proposal is driven by a perception that the FBI won't punish agents who abuse their authorities and a concern from Republicans that the bureau and Wray won't answer their questions about disciplinary actions taken, said Rep. Chris Stewart, R-Utah.
“One thing that societies cannot sustain is when they feel they cannot trust their own law enforcement, their own intelligence agencies,” he said. “We have to implement reforms to regain some of that trust.”
A senior FBI official declined to say how many agents have been dismissed or disciplined for violations, but said the bureau had found that deliberate misconduct by agents was rare. The official spoke on condition of anonymity under ground rules set by the bureau.
Members of both parties have also discussed moving to extend the terms of judges on the Foreign Intelligence Surveillance Court, which holds classified proceedings and approves wiretaps as well as the intelligence community's Section 702 rules each year.
They also want the court to transcribe all hearings for appeals and to expand the use of outside advocates — known as amicus curiae — who can oppose FBI requests before the court, the people said.
Lawmakers may push for a short extension into next year so they can complete a package of long-term changes. But the future of the program at present is uncertain.
Rep. Jason Crow, a Colorado Democrat who also sits on the committee, said that while he supports changes to the law, it was critical for Congress to keep it in place.
“If we lose this program, we just go blind overnight in a lot of critical areas,” he said.