FBI Director: FISA 702 Warrant Requirement A De Facto Ban
FBI director Christopher Wray made yet another impassioned plea to US lawmakers to kill a proposed warrant requirement for so-called “US person queries” of data collected via the Feds’ favorite snooping tool, FISA Section 702.
This controversial amendment to the Foreign Intelligence Surveillance Act will expire at the end of December unless Congress reauthorizes it. As the deadline draws near, and reform looms, the FBI and other law enforcement agencies are pulling out all the stops to convince lawmakers to greenlight Section 702 without making any changes to the spying tool — and especially without any warrant requirements.
Section 702 allows the Feds to warrantlessly spy on communications belonging to foreigners outside of the United States in the name of preventing crime and terrorists attacks.
However it also scoops up phone calls, texts, and emails of US persons — if the foreigner is communicating with or about these US persons — and all of this info is stored in massive databases the FBI, CIA and NSA can search without a warrant.
Millions of abuses of this spying power do occur, and sometimes foreigners are targeted as a pretext for snooping on the Americans or permanent residents with whom they are communicating.
Last week a bipartisan group of senators and representatives introduced a massive bill called the Government Surveillance Reform Act that would renew Section 702 for four more years — but with new limits to government surveillance including warrant requirements for surveilling US persons’ communications, location and vehicle data, web browsing history, and search records.
Per usual, the bill allows some exceptions to the warrant requirement. These include defensive cyber security purposes or other emergency situations – such as locating and rescuing hostages overseas – that pose an “imminent threat of death or serious bodily harm.”
In other words: if law enforcement doesn’t have sufficient time to complete warrant paperwork and get a judge to sign off on one in advance, it’s business as usual.
But this isn’t good enough for the FBI or the White House, which last week called the warrant requirement a “red line.”
During today’s hearing, Wray doubled down on his usual Section 702 rhetoric. In prepared remarks, he told Representatives that “loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks.”
Specifically, Wray’s concerned about the warrant requirement for US person queries.
“A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have,” Wray said.
He did address the FBI’s earlier abuses of Section 702 to spy on protesters, campaign donors, and even elected officials.
“To be sure, no one more deeply shares Members’ concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do,” Wray said.
The FBI “responded rigorously” to these violations, he added, and that already “dramatically” reduced the 702 searches on US persons, he added.
“Moreover, as we publicly announced in June, the FBI is implementing further measures both to keep improving our compliance and to hold our personnel accountable for misuse of Section 702 and other FISA provisions, including through an escalating scheme for employee accountability, including discipline and culminating in possible dismissal.” ®
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