A White House advisory board has recommended that Congress place new restrictions on the FBI's access to a foreign surveillance tool to prevent the bureau from using it to spy on Americans' electronic communications.
That surveillance program—authorized by Section 702 of the Foreign Intelligence Surveillance Act (FISA)—was intended to track foreign spies and potential terrorists but has predictably morphed into a way for law enforcement agencies to get a warrantless peek at Americans' phone records, emails, and other electronic communications. In the report published Monday, the White House's Intelligence Advisory Board said the FBI's use of the databases created by Section 702 should be limited to investigations dealing with foreign intelligence—the same standard that is used at the other intelligence agencies with access to that data.
"FBI's use of Section 702 should be limited to foreign intelligence purposes only and FBI personnel should receive additional training on what foreign intelligence entails," the report recommends. The report says the FBI has made "inappropriate use of Section 702 authorities, specifically U.S. person queries."
While the full scope of Section 702 data collection remains unknown, there's no doubt about the FBI's aggressive use of the database. In 2021, for example, the FBI ran more than 3.3 million queries through the Section 702 database, according to a government transparency report. Separately, a 2021 report from the secret federal court responsible for adjudicating FISA-related matters documented 40 instances in which the FBI accessed surveillance data as part of investigations into a host of purely domestic crimes, including health care fraud and public corruption.
The FBI imposed new internal restrictions on the use of Section 702 surveillance last year, but the new White House report says those changes are "insufficient to ensure compliance and earn the public's trust."
Indeed, the public (and Congress) ought to be wary of the FBI's promises to police itself—and of the Foreign Intelligence Surveillance Court's (FISC) ability to hold the bureau accountable. As Reason's Scott Shackford detailed in 2021, the FBI had promised the FISC in the wake of the Carter Page scandal that it would change procedures to stop snooping on Americans. The FISA court rubber-stamped those changes.
But the new White House report suggests the FBI is still up to its old tricks with regard to Section 702. As the Associated Press notes, the report details how the FBI used its access to the database to run queries for "a U.S. senator and state senator's names without properly limiting the search, looking for someone believed to have been at the Capitol during the Jan. 6, 2021, insurrection and doing large queries of names of protesters following the 2020 death of George Floyd."
Those latest revelations show that "the Federal Bureau of Investigation simply cannot be trusted with conducting foreign intelligence queries on American persons," wrote Matthew Guariglia, a senior policy analyst at the Electronic Frontier Foundation, which advocates for privacy in online communications, last week. "Regardless of the rules, or consistent FISC disapprovals, the FBI continues to act in a way that shows no regard for privacy and civil liberties."
The FBI's ongoing misuse of the Section 702 database has become a hot-button political topic, particularly among Republicans who are unhappy about the bureau's surveillance of former President Donald Trump's allies, including Page. A group of six Republican lawmakers led by Rep. Matt Gaetz (R–Fla.) and including Rep. Thomas Massie (R–Ky.) have introduced a resolution calling for Congress to allow FISA to expire at the end of the year. Meanwhile, lawmakers on both sides of the aisle have spoken out about the need for reforms to Section 702 in advance of the December deadline for the program's reauthorization.
The federal intelligence community seems to be taking that threat to its snooping seriously. Monday's report claims that blocking the reauthorization of the spying program would be "one of the worst intelligence failures of our time." In a statement, White House National Security Adviser Jake Sullivan said Congress should reauthorize the program "without new and operationally damaging restrictions on reviewing intelligence lawfully collected by the government and with measures that build on proven reforms to enhance compliance and oversight."
It would appear that the FBI's abuse of Section 702 to spy on Americans' communications has exceeded even the intelligence community's willingness to defend such unconstitutional techniques. As such, revoking the FBI's ability to use the Section 702 database to investigate routine crimes ought to be the starting point for congressional negotiations over the future of the program.
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