The FBI’s Most Controversial Surveillance Tool Is Under Threat

Prominent political figures, including US Senators Ron Wyden and Rand Paul, have put forward bills in the past seeking to limit the FBI’s access to unminimized Section 702 data. A bill initially put forward by the lawmakers in 2017, known as the USA RIGHTS Act, sought to rein in the FBI’s “sweeping authority,” which they described as being “clouded in secrecy.” Hakeem Jeffries, the current House Democratic Leader, was a cosponsor of the bill.

“The intelligence community, and the FBI in particular, has unnecessarily plundered the most private, sensitive information of American citizens, treating the Fourth Amendment with contempt,” says former Republican House Judiciary chair Bob Goodlatte, now senior adviser to the Project for Privacy and Surveillance Accountability. “Congress must add impenetrable guardrails to Section 702, requiring probable cause warrants to obtain Americans’ private information.”

Other troubling incidents, previously disclosed by a redacted court ruling, are also mentioned, including FBI searches of Section 702 data during “background investigations” into repairmen who’d been given access to an FBI field office; individuals who’d requested to join the bureau’s “Citizens Academy”—a program for “business, religious, civic, and community leaders”—and “individuals who entered the field office seeking to provide a tip or to report that they were the victim of a crime.”

The FBI did not respond to a request for comment. Inquiries at the offices of the House and Senate Judiciary Committees also went unanswered.

Sean Vitka, senior policy counsel for Demand Progress, a nonprofit focused on national security reform, says it is difficult to exaggerate the danger posed by federal agents rummaging through “untold millions of emails and other communications” without a warrant, while ignoring basic safeguards. “There is something deeply wrong with FISA and the government’s out-of-control surveillance state, and it is absolutely imperative that Congress face it head-on this year, before it’s too late,” he says.

The recently disclosed errors are not the first in FBI’s history, according to research by Demand Progress. Starting in 2017 and continuing until at least 2019, the bureau is known to have conducted thousands of legally impermissible searches, according to declassified court records. The Foreign Intelligence Surveillance Court noted in a 2018 memorandum, for instance, that the FBI’s minimization procedures, “as they have been implemented,” were consistent with neither the FISA requirements nor the Fourth Amendment itself.

It has also not complied with regulations, passed in 2018, that required a court order before using Section 702 data to further domestic criminal investigations. An oversight review conducted prior to November 2020 found, for instance, that the FBI had conducted 40 queries without proper authorization related to a range of activities, from organized crime and health care fraud to public corruption and bribery.

A previous DOJ audit—declassified in August 2021—disclosed that, in one instance, an intelligence analyst had conducted “batch queries” of FISA-acquired information at the FBI’s request, using the personal information of “multiple current and former United States government officials, journalists, and political commentators.” While the analyst attempted to remove the US information, in some cases, it said, they “inadvertently failed” to do so.