DOJ watchdog to review FBI data retrieval uses under contested spying authority
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The audit came from Congress as part of a law that reauthorized Section 702 of the Foreign Intelligence Surveillance Act.
The Justice Department’s watchdog is reviewing how the FBI searches intelligence databases for information on U.S. persons, following past concerns over the law enforcement agency’s compliance with a controversial spying power that was renewed last Spring.
The audit, mandated by Congress, will assess whether recent legal reforms have improved the FBI’s handling of data queries under Section 702 of the Foreign Intelligence Surveillance Act, a statute used to collect foreign intelligence that has sometimes swept up U.S. communications, DOJ’s Inspector General office said Wednesday.
The review was directed under an April 2024 law signed by then-President Joe Biden that reauthorized the spying ordinance with reforms to help direct the FBI and intelligence community to better meet compliance standards for the law.
Section 702 is widely viewed as a highly effective and necessary spying tool because it allows intelligence agencies to target foreigners abroad without a warrant. But the statute is controversial because it’s allowed to capture two sides of the communications stream, including cases where an American citizen may be unwittingly talking to a foreign target.
The law has been abused in the past, past legal reviews found, including when it was used to target racial justice protesters in 2020, as well as participants in the January 6, 2021 U.S. Capitol riot.
For years, law enforcement and the intelligence community have argued that once 702 data is lawfully collected, it can be searched, or queried, at will, without the use of a warrant. Privacy and civil liberties groups have long pushed for a warrant requirement for U.S. person data to be tacked onto the law. Many top intelligence officials have opposed this, arguing a warrant measure slows down national security investigations.
A recent court ruling in New York found that the FBI improperly used its surveillance authority when conducting database searches and determined that accessing stored Section 702 data qualifies as a separate Fourth Amendment search.
The oversight office “is evaluating the compliance by FBI personnel with the FBI’s querying procedures adopted under FISA section 702(f), with a particular focus on compliance with the procedures governing U.S. person queries,” OIG said in an online posting. “The OIG is also analyzing each specific reform that is responsible for any identified improvement in the FBI’s record of compliance with the querying procedures and is assessing the status of the FBI’s implementation of all querying reforms required by RISAA,” it adds.
RISAA refers to the Reforming Intelligence and Securing America Act, the law signed by Biden last year to extend 702 with what the Biden administration said were meaningful reforms that would prohibit queries for crimes not related to national security and codify a slew of other remediation steps already taken by the FBI to curtail 702’s misuse.
Other amendments adopted in that final bill included a quarterly directive for the FBI to tell Congress the number of U.S. person searches it conducts, as well as provisions to expand the definition of foreign intelligence to include narcotics trafficking and enable the tool’s use in vetting foreigners entering the nation.
Director of National Intelligence Tulsi Gabbard has historically been a longtime privacy hawk who, in the past, publicly called for the dismantling of Section 702. Gabbard has since reversed her position on the ordinance, deeming it vital to national security. But notably, in her confirmation hearing, she said she supports a warrant requirement for the intelligence community to query data on U.S. persons.