FBI: FISA Section 702 ‘absolutely critical’ to spy on, err, protect Americans

June 9, 2023 TH Author

The FBI doesn’t want to lose its favorite codified way to spy, Section 702 of the US Foreign Intelligence Surveillance Act. In its latest salvo, the agency’s deputy director Paul Abbate called it “absolutely critical for the FBI to continue protecting the American people.”

Apparently spying on protestors or Congressional donors is just another way to show that you really care.

The FISA is the federal law enacted in 1978 that allows the Feds to collect foreign intelligence domestically, and Section 702 permits the targeted surveillance of communications belonging to people outside the US, ideally to prevent criminal and terrorist acts.

As the name suggests, it’s supposed to be limited to foreign communications but the surveillance dragnet can, and often does, sweep up phone calls, texts and emails with US citizens — who the suspect talked to, and who their contact spoke to, and the next few lines in the communications link.

Historically, and as recently as last year, the government has used this data to monitor American activists, journalists, and others.

The FBI, CIA and NSA can search these communications without a warrant, and these messages can then be used to prosecute people for crimes.

Section 702 is set to expire at the end of the year unless Congress renews it. This pending deadline has seen law enforcement putting the full court press on lawmakers to ensure it stays intact, even as some of them — including US Senator Ron Wyden (D-OR) — have called for reform.

Abbate was the keynote speaker at Wednesday’s Boston Conference on Cyber Security. During his talk, he told attendees that the FBI “cannot afford to lose” Section 702.

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Abbate did acknowledge that sometimes people on domestic soil get caught up in a sweep. For example, if the FBI is collecting foreign intel on a hacker in China, and that cybercriminal is working with people in the US.

“702 further allows the FBI to lawfully run searches against that collection and see who that foreign-based hacker may be working within the United States to identify potential victims who might not even know that they have been compromised or are being targeted and to warn those who might be targeted next,” Abbate opined.

It also allows the FBI to “connect the dots between foreign threats and targets here in the US,” and it is “absolutely critical” in protecting Americans, “not just from cyberattacks but also from terrorist attacks, foreign spies, and a host of other hostile threats.”

Abbate skipped over the part where the FBI misused Section 702 more than 278,000 times between 2020 and early 2021 to conduct warrantless searches on George Floyd protestors, January 6 rioters who stormed the Capitol, donors to a Congressional campaign, and others.

He did, however, tout an “entire slate of important reforms to our processes, electronic systems, training, and oversight.”

Over the past year the FBI implemented new processes around Section 702 searches, including mandatory query training and “enhanced approval requirements for certain ‘sensitive’ queries, such as those involving domestic public officials or members of the news media.”

It also now requires FBI agents to “opt-in” if they wish to run a search against Section 702-acquired data, instead of having queries run against this data by default.

Plus, Abbate promised, the FBI is “committed to being good stewards of this tool and to use it transparently to ensure the public’s trust because, considering the complexity and severity of the cyber threat alone, we need every tool we can lawfully bring to bear.”

Sounds reasonable enough, right? Massive communications databases just sitting there, waiting for warrantless searches. What could possibly go wrong? ®