The news
Recent changes by the Federal Bureau of Investigation appear to be have significantly improved compliance with rules restricting when agents can access intercepted communications under the Foreign Intelligence Surveillance Act, according to data from the agency’s audit office.
In the year before the changes were made, about 18 percent of searches or database searches were missing, according to a sample of the agency. In a nine-month period following the changes, about 4 percent did not comply, the bureau said.
The study examined searches of intercept data collected under two different programs. The first, traditional FISA interceptions, pertain to individual court orders authorizing targeting of people on domestic soil under a 1978 law. The second, called Section 702 interceptions, involves the warrantless surveillance of foreigners abroad of under amendments to FISA passed by Congress in 2008.
Why it matters
The FBI is trying to convince Congress that it can be trusted with national security surveillance powers. In 2019, an inspector general found that the FBI had failed applications during its investigation in Russia to obtain FISA warrants from a court that had targeted a former adviser to the 2016 Trump campaign, Carter A. Page.
The reason for his push is that Section 702 expires at the end of 2023 unless Congress passes new legislation to extend it. Lawmakers revamped it in 2012 and 2018, but it is expected to face bigger hurdles this cycle. Civil liberties advocates who have long detested the law have this time been joined by Republicans who share former President Donald J. Trump’s animosity toward the FBI and surveillance.
While Section 702 surveillance differs from the type of FISA the FBI used to get court orders to wiretap Mr. Page, lawmakers have confused the two.
Background
Following the Inspector General’s findings in 2019, the FBI has made several changes under the Trump administration, including creating an Office of Internal Auditing.
Around the same time, the Foreign Intelligence Surveillance Court railed against the FBI over findings that officials had exceeded limits on when agents are allowed to intercept Section 702 interceptions on Americans. They can only do this if there is a reason to believe that the search will yield foreign intelligence or evidence of a crime, but sometimes they did this for other purposes, such as vetting bureau facility maintenance personnel.
In 2021, the agency further changed its FISA practices in anticipation of the expected legislative battle over expanding Section 702. First, its computer systems now default to excluding both types of FISA raw information when agents search different databases unless they choose to include them in to take. . It also reinforced training on the rules.
A report last month said the number of Americans’ identifying information — such as a name or email address — used by the FBI to search the Section 702 repository plummeted as a result, from nearly three million in 2021 to 119,383 last year .
The new report, based on sampling of certain categories, suggested that the number of problematic searches from both types of FISA interceptions has also plummeted.
In a background briefing with reporters, a senior FBI adviser, speaking on condition of anonymity, characterized the report as “important and significant.” But some privacy advocates who want Congress to impose a court order before allowing the FBI to request Americans’ information in the Section 702 repository were skeptical that the recent changes went far enough.
Elisabeth Gottin of the Brennan Center for Justice at New York University School of Law said that given the large total number of searches for US information, even a 4 percent non-compliance rate represents a “shocking number of violations.”
What’s next
The senior FBI adviser also said the agency intended to move forward. The auditors made 11 recommendations to FBI director Christopher A. Wray, which the agency ordered to obey, the official said.
The changes include requiring FBI officials to keep a concurrent record of why each question they ask meets the standards, and developing a system for continuous monitoring of such questions.
In the meantime, as members of Congress debate passing legislation to expand Section 702, they are also considering whether to impose new limits on one or both types of FISA surveillance as well.