The House is planning a vote on an amendment from Rep. Andy Biggs (R-Ariz.) that would require the FBI to secure warrants before searching lawfully collected foreign intelligence data for references to Americans. This is data the National Security Agency gathers not in bulk, but on specific non-Americans believed to be operating outside the country and likely to communicate foreign intelligence information.
The program has been a vital tool in hunting down leaders of al-Qaeda and the Islamic State, as well as detecting assassination and kidnapping plots on U.S. soil, Chinese spy rings, transnational repression, foreign election interference, and fentanyl supply chains. Section 702 allowed the government to identify the hackers behind the cyberattack on Colonial Pipeline in 2021 and recover most of the ransom the oil company paid. Senior government officials have evidence of terrorist plots on U.S. soil that were foiled because the FBI had ready access to 702 data.
For FBI agents to access this NSA data, current law requires that they have an authorized purpose, a reasonably designed search that’s not overly broad and a specific factual basis to believe that they’re reasonably likely to retrieve foreign intelligence information.
True, the FBI failed to satisfy those requirements thousands of times in 2020 and early 2021. Agents searched the 702 system to see whether people arrested at Black Lives Matter protests and after the Jan. 6, 2021, insurrection had links to foreign intelligence services. One agent searched the names of 19,000 donors to a congressional campaign. In other cases, investigators queried the names of a senator and congressman. After the Foreign Intelligence Surveillance Court revealed these abuses, a coalition of strange bedfellows on the right and left coalesced to cut off the FBI’s access.
But a chastened FBI implemented many changes to prevent misuse. Now an agent must type a specific justification for every search, receive annual training and get approval from an attorney before any “batch job” that will run more than 100 names against the system. The Justice Department says these changes led to a 98 percent drop in the number of U.S. person queries of the 702 database, from 2.9 million in 2021 to 119,383 in 2022 and 57,094 in 2023. Audits have shown virtually all of them complied with the rules. The FBI has also established escalating consequences for misusing the system, from taking away access to criminal referrals.
The House bill under consideration this week would codify into law every change the FBI made, so the next administration couldn’t unwind them. It would also ban the bureau from running searches for evidence of crimes unrelated to national security, require an FBI supervisor or attorney to approve all U.S. person searches and prohibit political appointees from being involved in the approval process. In addition, it would tighten up the part of the FISA law that federal investigators abused during the 2016 campaign to authorize surveillance on Trump campaign adviser Carter Page.
Civil libertarians should take the win, but instead they’re insisting on a warrant requirement that could cripple the program. Getting a warrant can take days or weeks. Exceptions written into the warrant proposal — to allow searches when there’s an imminent threat, for certain cybersecurity purposes or if the U.S. person consents — are too narrow and impractical. The data gathered under 702 has typically been most useful in the early stages of an investigation, before probable cause can be established. At that stage, agents often know little about a U.S. person of potential interest beyond that they’re interacting with or being talked about by a foreign intelligence target.
Imposing a warrant requirement risks re-erecting the wall that existed between domestic law enforcement and foreign intelligence gathering before Sept. 11, 2001. The House should embrace 702 reform — not the mistakes of the past.
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