The FBI and the Biden administration more broadly have lobbied Congress to reauthorize the 702 program in its current form, ignoring calls for reform that have grown louder since the start of the year and took the form of a bill this month Comprehensive data protection law – the Government Surveillance Reform Act – law that also aims to impose warrant requirements on the FBI, which can currently conduct searches of 702 data without a judge’s approval as long as it is “reasonably likely” to find evidence of a crime .
FBI Director Christopher Wray condemned plans to implement a 702 warrant in a speech before the House Homeland Security Committee on Wednesday, calling it a “significant blow” to the bureau’s national security division.
“A warrant request would amount to a de facto ban,” Wray says, noting that the FBI would often be unable to meet the legal standard required for court approval and that processing Arrest warrants would take too long given the “rapid” approach to evolving threats.”
The report goes on to detail “significant” violations at the FBI, most of which were reported to the Foreign Intelligence Surveillance Court (FISC) as early as 2022 before becoming public knowledge in May. Most of the incidents — including one in which an FBI analyst conducted “multiple surveys of over 19,000 donors to a congressional campaign” — occurred before a package of “corrective reforms” that the FBI credits with practically resolving its compliance problems.
The report attributes “most” misuse of 702 data to “a culture at the FBI” in which many “poorly trained” agents and analysts were granted access with few internal safeguards. For example, it says that FBI systems for storing 702 data were not designed to require employees to “consent” before conducting a query, which “led to many unintentional, non-compliant” problems with the system. “It also appears that FBI management did not take query compliance incidents seriously,” the report said, “and was slow to implement reforms that would have addressed many of the problems.”
Still, the committee says the FBI has “recognized the depth and breadth of its problems” and has begun to implement serious reforms of its own – including, among other things, additional guidance for employees, comprehensive system changes and increased oversight in the form of supervisory reviews of FBI legal experts and senior staff . The Committee notes, however, that the FISC, although somewhat “encouraged” by recent improvements, has assessed the Office’s non-compliance with 702 procedures as “persistent and widespread” and warns that it may become necessary Significantly restrict its employees’ access to unprocessed foreign intelligence information in the future.
“The FBI has a history of abuses in requesting Section 702 information,” the report says, adding that reforms the Intelligence Committee will soon advance would result in the number of FBI employees with access on the data would decrease by up to 90 percent.
Citing “inadequate control and oversight” at the FBI, the committee says it should be prepared to consider any request targeting a U.S. person “within six months” of the search, and House leaders say and the Senate should be notified immediately if and if an FBI intervenes. Analyst questions a term that could “identify a member of Congress.”
“The American people deserve a law that protects them from both government overreach and security threats,” the report said. “Section 702 needs to be reauthorized but also reformed.”