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A report by the President’s Intelligence Advisory Board (PIAB), which the White House released on Monday with light redactions, offered a number of ways to reform the Foreign Intelligence Surveillance Act’s (FISA) Section 702. First on the list was the recommendation that the attorney general be directed to “remove FBI’s authority to conduct queries for evidence of a non-national security-related crime in its Section 702 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 said. “In the event that FBI encounters evidence of a non-national security-related crime while reviewing Section 702 data, existing intelligence community procedures for handling evidence of such crimes uncovered in the course of reviewing intelligence information should be applied.”
Section 702, which was enacted in 2008 and allows government officials to conduct “targeted” searches of non-U.S. citizens abroad without a warrant, is set to expire at the end of the year. As Congress considers reauthorization, with both Republicans and Democrats raising concerns about Fourth Amendment rights and abuse of intrusive surveillance capabilities, the White House has said Section 702 is essential to protect national security and should be preserved.
Multiple agencies can make Section 702 queries for email, phone and other types of information, but the FBI in particular has come under intense scrutiny.
A Foreign Intelligence Surveillance Court filing released this spring said the bureau improperly used that trove of information over 278,000 times in recent years that resulted in the collection of data about Capitol riot suspects, George Floyd protest demonstrators, and American donors to a congressional campaign. In addition, a Department of Justice (DOJ) audit of the FBI in 2021 found a “large number of noncompliant incidents,” some of which included “individuals arrested during the January 6 Capitol breach,” the PIAB report said.
As noted by the U.S. intelligence community, Section 702 allows for the targeting of “non-United States persons who are reasonably believed to be located outside the United States,” but not Americans or anyone in the United States. Also prohibited under Section 702 is “reverse targeting,” meaning the intelligence community “may not target a non-U.S. person located outside the U.S. if the purpose of the collection is to collect information about a United States person or anyone located in the United States.”
Oversight authorities have found rampant misuse of the database in recent years, reporting that “most compliance incidents have been attributable to FBI’s pervasive lack of understanding regarding query standards,” the PIAB report said. Though the panel said its members “did not find FBI personnel willfully using Section 702 for political purposes, and intentional misconduct of FBI querying for any reason was exceedingly rare,” the FBI’s “conduct has nevertheless undermined public confidence in its ability to use Section 702 in the way it was intended.”
The FBI has implemented reforms feared toward improving FISA compliance, including more stringent reviewing processes and training. In a statement on Monday, the FBI stated the PIAB report recognizes that the changes it has made have “yielded substantial compliance improvements” and said it agreed that Section 702 should be reauthorized “in a manner that does not diminish its effectiveness, as well as reassures the public of its importance and our ability to adhere rigorously to all relevant rules.”
Though the PIAB report did acknowledge the FBI put in place reforms since 2021 “that have led to significant improvements in compliance noted” by the DOJ and Office of the Director of National Intelligence, it said the board found them to be “insufficient to ensure compliance and earn the public’s trust.”
Among the other recommendations it made was to direct the FBI director to designate a compliance officer to ensure appropriate use of Section 702 in each field office and FBI headquarters and to create a ” common culture of compliance across the FBI workforce that employs Section 702 authorities through senior personnel exchanges.”
Two top officials in President Joe Biden’s White House — National Security Adviser Jake Sullivan and Principal Deputy National Security Adviser Jon Finer — said in a statement that they agree with PIAB’s “recommendation that Section 702 should be reauthorized 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, among other improvements.”
They added: “We look forward to reviewing the Board’s recommendations for how we can secure this critical national security authority and to working with Congress to ensure its reauthorization.”