FISA 702 searches of foreign nationals tick up, amid major drop in US citizen queries

The number of foreign nationals spied on by the U.S. through its warrantless surveillance program reached an all-time high last year, according to government statistics released Friday, even as the number of Americans swept up in such searches declined dramatically. 

The report, required annually, comes as Congress weighs reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), set to expire this December.

Section 702 allows for the warrantless surveillance of foreign nationals outside the United States, even as they communicate with U.S. citizens on domestic soil. It’s a feature that many fear allows intelligence agencies to keep tabs on U.S. citizens without securing a warrant.

The FBI spied on more than 246,000 foreign nationals using the tool, a jump from roughly 232,000 the year before, about a 6 percent increase.

The number of Americans impacted by those searches plummeted, from 2.9 million last year to 119,000 this year.

The FBI attributes the decline to a shift in its practices, including requiring agents to “opt in” to searching the 702 database and requiring attorney approval when running a batch of more than 100 queries.

It’s a factor Rep. Jim Himes (D-Conn.), the top Democrat on the House Intelligence Committee and a leader in the reauthorization effort, called “evidence of a real tightening up on the part of the FBI on the most controversial aspect of 702.”

“It shows that they’ve taken what was a pretty blunt instrument, the mechanics of making a query, and made it much more targeted and specific,” he told The Hill.

“I think it’s evidence of very good progress. I don’t think it gets us over the reauthorization line. I think there’s still a conversation to be had about the fact that U.S. person data is queried,” something he said can be done as a defensive measure if there are concerns a citizen may be targeted.

But the American Civil Liberties Union (ACLU) said the data shows the process should be reformed to require a warrant.

“FBI agents are sitting at their computers and subjecting Americans to warrantless ‘backdoor searches’ hundreds of times per day. While the new statistics show a decline, the total number of searches is huge even now, and the intrusion on Americans’ privacy is undeniable,” said Patrick Toomey, deputy director with the American Civil Liberties Union’s National Security Project, in a statement.

“After years of FBI surveillance abuses, it’s time for Congress to step in and require the constitutional gold standard: a warrant,” he said.

Himes said the practice would undercut the ability to do defensive searches to see if a citizen may be at risk. 

“The problem is that warrants are designed to be given when there’s probable cause to believe that somebody is committing a crime. Warrants aren’t designed to allow the FBI to investigate the possibility that a U.S. person might be a victim,” he said.

Section 702 often faces a difficult path to reauthorization every five years, but this year may be more so, with critics on the right and the left already expressing hesitation.

Concern from the right comes amid a wave of GOP criticism of law enforcement agencies, including the FBI, with the House Judiciary Committee alleging it has improperly targeted conservatives, something the agency denies. Though Section 702 is different from the program used to spy on former President Trump’s adviser Carter Page, many still see the case as emblematic of broader issues with FISA.

On the left, lawmakers argue the tool can disproportionately impact people of color and religious minorities.

Two California lawmakers this week started the bipartisan Fourth Amendment Caucus, arguing for reform of Section 702.

With a nod to the constitutional protection against unreasonable searches and seizures by the government, a “Dear Colleague” letter says the caucus would fight “to safeguard against warrantless searches and seizures, close privacy-violating surveillance loopholes, and protect and restore Fourth Amendment rights.”

The Justice Department and FBI have been making the case for Section 702 reauthorization, warning of what they would lose if the power expires at the end of the year.

“What keeps me up at night is thinking about what will happen if we fail to renew Section 702 of FISA,” said Matthew Olsen, the assistant attorney general for national security, at a discussion at the Brookings Institution in March. 

“Without 702, we will lose indispensable intelligence for our decision-makers and warfighters, as well as those of our allies. And we have no fallback authority that could come close to making up for that loss.”