The Federal Bureau of Investigation (FBI) has released internal documents used to guide agency personnel on how to search the massive databases of information collected under the Foreign Intelligence Surveillance Act, including communications collected without a warrant under Section 702. Despite reassurances from the intelligence community about its “culture of compliance,” these documents depict almost no substantial consideration of privacy or civil liberties. They also suggest that in the years before these guidelines were written, even amidst widespread FBI misuse of the databases to search for Americans’ communications, there were even fewer written guidelines governing their use. Above all, FBI agents can still search for and read Americans’ private communications collected under Section 702, all without a warrant or judicial oversight.
Section 702 allows the government to conduct surveillance inside the United States by vacuuming up digital communications so long as the surveillance is directed at foreigners currently located outside the United States. It also prohibits intentionally targeting Americans. Nevertheless, the NSA routinely (“incidentally”) acquires innocent Americans' communications without a probable cause warrant. Once collected, the FBI can search through this massive database of information by “querying” the communications of specific individuals.
In 2021 alone, the FBI conducted up to 3.4 million warrantless searches of Section 702 data to find Americans’ communications. Congress and the FISA Court have imposed modest limitations on these “backdoor searches,” but according to several recent FISA Court opinions, the FBI has engaged in “widespread violations” of even these minimal privacy protections.
After a string of scandals, these newly released documents demonstrate some of the steps the FBI took to train personnel who apparently did not understand how to stay within the law’s extremely broad mandate. Namely, to query the collected communications of U.S. persons only if they are investigating foreign intelligence, a crime, or both, still without judicial review. According to FBI director and media reports, these guidelines led to a significant drop in unauthorized searches, but even this “dramatic” drop still allegedly resulted in over two hundred thousand warrantless searches of Americans’ private communications in 2022 alone. That’s two hundred thousand too many; Congress should close the “backdoor loophole” and require the FBI to get a search warrant.
In addition to stopping the unconstitutional surveillance, Congress needs to include robust new transparency measures into any reauthorization of Section 702 to enable future audits and accountability of these secretive programs. FISA has long contained procedures for private parties to sue over surveillance that violates their rights, including a mechanism for considering classified evidence while preserving national security. But, in lawsuit after lawsuit, the executive branch has sought to avoid these procedures, and the judiciary, including the Supreme Court, has adopted cramped readings of the law that create a de facto national security exception to the Constitution.
EFF is far from alone in this fight to reform Section 702. Not only are we joined by a large number of civil liberties and civil rights groups, even members of the Executive Branch’s Privacy and Civil Liberties Oversight Board (PCLOB) have announced that this program should not continue as is. PCLOB member Travis LeBlanc said at a conference, “Given what I have seen and what I know, I do have several concerns about a clean reauthorization without significant, common-sense reforms to safeguard privacy and civil liberties.”
Section 702 has become something Congress never intended: a domestic spying tool. Congress should consider ending the program entirely, but certainly not reauthorize Section 702 without critical reforms, including true accountability and oversight.