The FBI improperly used surveillance powers to conduct searches for information on a U.S. senator, a state lawmaker and a state judge, according to court records released Friday as part of a public records request.
The FBI’s improper use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) was documented in an opinion from the Foreign Intelligence Surveillance Court (FISC) and is sure to pose challenges for an intelligence community lobbying for the reauthorization for what it sees as one of its most vital tools.
The tool — which allowed for warrantless spying on foreigners located abroad — has long been criticized as a backdoor tool for gaining information on Americans who may be communicating with those being surveilled.
And critics complain the information gathered by the agency through 702 is too easily tapped for investigations with no foreign nexus.
The FISC outlined three examples of instances where FBI personnel conducted searches of “sensitive query terms,” like those of U.S. public officials or candidates, without first seeking approval from the FBI’s deputy director.
“In June 2022, an analyst conducted four queries of Section 702 information using the last names of a U.S. Senator and a state senator, without further limitation,” the opinion states.
While the two were believed to be targets of “a specific foreign intelligence service,” the National Security Division at the Department of Justice determined the FBI did not meet the needed standard for running such a query.
And in October of that year, the opinion states that “a Staff Operations Specialist ran a query using the Social Security number of a state judge who ‘had complained to [the] FBI about alleged civil right violations perpetrated by a municipal chief of police.’”
The opinion does not make clear the identity of those searched.
The American Civil Liberties Union (ACLU), whose efforts prompted the release of the court opinion, highlighted other alarming patterns.
“These disturbing new revelations show how Section 702 surveillance, a spy program the government claims is focused on foreign adversaries, is routinely used against Americans, immigrants, and people who are not accused of any wrongdoing,” Patrick Toomey, deputy director of the ACLU’s National Security Project, said in a statement.
“The FBI continues to break the rules put in place to protect Americans, running illegal searches on public officials including a U.S. senator, and it’s long past time for Congress to step in,” Toomey’s statement said. “As Congress debates reauthorizing Section 702, these opinions make clear why fundamental reforms are urgently needed.”
The FBI and Justice Department in recent weeks have noted the roll out of some FISA reforms — pointing to a drop in overall queries that involved U.S. citizens.
The opinion, originally filed in April, does comment on improvements from the bureau.
“Despite the reported errors, there is reason to believe that the FBI has been doing a better job in applying the querying standard,” Judge Rudolph Contreras writes in the opinion.
“In some cases, F.B.I. personnel apparently misapplied the querying standard to a group of similarly situated persons, but those violations do not approach the scale of a number of prior ones.”
The FBI stressed that detail in its response to the opinion’s release.
“The 2023 FISC Opinion confirms the significant improvement in the FBI’s Section 702 querying compliance since the implementation of our substantial reforms,” FBI Director Christopher Wray said in a statement.
“Section 702 is critical in our fight against foreign adversaries. We take seriously our role in protecting national security and we take just as seriously our responsibility to be good stewards of our Section 702 authorities,” Wray said. “Compliance is an ongoing endeavor, and we recently announced new additional accountability measures. We will continue to focus on using our Section 702 authorities to protect American lives and keeping our Homeland safe, while safeguarding civil rights and liberties.”
It’s not the first time a lawmaker has been improperly searched via FISA 702, with Rep. Darin LaHood (R-Ill.) saying in March that his name was searched using the tool.
Section 702 is set to expire at the end of the year, and lawmakers on both sides of the aisle have said they will refuse to back its reauthorization without significant reforms.
The FBI sent a letter Friday to House and Senate leaders noting that several different reviews found agents have complied with FISA guidelines at least 98 percent of the time.
But in a call with reporters Friday, a senior FBI official said the agency is working on building trust with lawmakers who may feel personally impacted by the issue.
“We are communicating as much as we can to build that level of confidence so that they understand how we are using the tool and how we are holding people accountable for when they are not using the tool correctly. But also to make sure they understand when we do and do not do such things as query members of Congress,” the official said in response to a question from The Hill.
“There was an unacceptably high level of noncompliance and various noncompliance … behavior that was going on,” the official added.
“We’ve been very open about [how] we accepted the fact that that was unacceptable. That’s not what we expect from ourselves as an organization.”
Sen. Ron Wyden (D-Ore.), however, said lawmakers are not assured that intelligence agencies are being fully forthcoming about how they use FISA.
“For years, as government officials have provided misleadingly narrow testimony about who is targeted under Section 702, I have pushed to get the government to come clean. The revelation that 702 is used against ‘foreign governments and related entities’ directly impacts Americans’ privacy, as American journalists, businesspeople, students and others all have legitimate reason to communicate with foreign governments,” Wyden said in a statement.
“The fact they can be swept up in 702 collection further highlights the need for reforms to protect their privacy.”