The House plans to vote on an amendment from Rep. Andy Biggs (R-Ariz.). The amendment would require the FBI to secure a warrant before searching legally collected foreign intelligence data for information about Americans. This is not data collected in bulk by the National Security Agency, but rather data on specific non-Americans who operate abroad and are considered likely to communicate foreign intelligence.
The program not only hunts down al-Qaeda and Islamic State leaders, but also detects assassination and kidnapping plots on U.S. soil, Chinese spy rings, cross-border repression, foreign election interference, and fentanyl supply chains. It has become an important tool. Section 702 allowed the government to identify the hackers behind his 2021 cyberattack on the Colonial Pipeline and recover most of the ransom paid by oil companies. Government officials say they have evidence that terrorist plots were thwarted on U.S. soil because the FBI had easy access to data on 702 cases.
Under current law, FBI agents must access this NSA data for an authorized purpose, a reasonably designed investigation that is not too broad, and a belief that there is a reasonable likelihood of obtaining foreign intelligence information. We need concrete factual evidence for this.
Indeed, the FBI failed to meet these requirements more than 278,000 times in 2020 and early 2021. Investigators searched the 702 system to determine whether people arrested after the Black Lives Matter protests and the January 6, 2021 riots had ties to foreign intelligence services. . One agent searched the names of 19,000 donors to congressional campaigns. In other cases, investigators questioned the names of senators and congressmen. After the Foreign Intelligence Surveillance Court revealed these abuses, a strange coalition of compatriots on the right and left banded together to cut off FBI access.
But a chastened FBI made a number of changes to prevent abuse. Now, agents enter specific reasons for each search, undergo annual training, and get attorney approval before running a “batch job” that runs her 100-plus names against the system. is needed. The Department of Justice said these changes resulted in a 98% decrease in the number of queries made by Americans to the 702 database, from 2.9 million in 2021 to 119,383 in 2022 and 57,094 in 2023. It has said. The audit found that virtually everything was in compliance. The FBI has also established that the consequences for abusing the system are magnified, including by taking away access to criminal referrals.
The House bill being considered this week would make all the changes the FBI has made into law, and the incoming administration cannot undo them. It also prohibits the bureau from searching for evidence of crimes unrelated to national security, requires an FBI supervisor or attorney to approve all searches of U.S. persons, and prohibits political appointees from being involved in the approval process. do. It would also strengthen parts of the FISA law that federal agents exploited during the campaign to authorize surveillance of 2016 Trump campaign adviser Carter Page.
Civil libertarians should have won, but instead they are insisting on a warrant that could invalidate the program. Obtaining a warrant can take anywhere from a few days to a few weeks. The proposed warrant’s exceptions, which would allow searches if there is an imminent threat, for specific cybersecurity purposes, or with the consent of a U.S. person, are too narrow and unrealistic. Data collected under a 702 is typically most useful during the early stages of an investigation, before probable cause is established. At that stage, agents often know little about a potential U.S. person of interest other than that they are interacting with or have been told by a foreign intelligence target. not.
Imposing warrant requirements risks re-erecting the wall that existed before September 11, 2001, between domestic law enforcement and foreign intelligence gathering. The House should embrace 702 reform, not the mistakes of the past.
