The President’s Intelligence Advisory Board (PIAB) has unanimously recommended the reauthorization of a controversial section of the Foreign Intelligence Surveillance Act (FISA) despite the FBI’s flagrant misuse of the program to target U.S. citizens.
In a report (pdf) released on July 31, the PIAB recommended more than a dozen reforms to improve the public’s perception of FISA Section 702, a controversial program that authorizes the warrantless surveillance of non-U.S. citizens who are believed to be abroad, although the communications of U.S. citizens are often swept up in the mix.
Set to expire on Dec. 31, the program has been scrutinized in recent years amid reports that the FBI abused the program millions of times to improperly query U.S. citizens, including Black Lives Matter protesters and suspects in the Jan. 6, 2021, breach of the U.S. Capitol.
In its report, the PIAB acknowledged those “inappropriate” queries, attributing them to a “pervasive lack of understanding” of proper protocols among FBI employees. That lack of understanding, the board added, further led to “a lack of rigor, an abundance of complacency … and a lack of urgency to comply” with set standards.
Despite those failures, the board ultimately concluded that the national security benefits of Section 702 outweigh any concerns about potential future violations of Americans’ constitutional rights.
“The Board concludes that jettisoning Section 702 over compliance errors made in its first 15 years would be a tremendous mistake,” the report stated, describing the program as “essential” to defending the United States from terrorism, cyberattacks, foreign actors, deadly drugs, and other threats.
Reforms
To ensure that Congress reauthorizes Section 702, the PIAB recommended that the Biden administration take 13 actions to enhance compliance, transparency, and accountability.
The most significant change that the board proposed was to instruct the attorney general to eliminate the FBI’s authority to search Section 702 data for evidence of crimes unrelated to national security.
Other suggested reforms include the establishment of a stricter and more consistent preapproval standard for content queries involving U.S. citizens, the designation of an FBI compliance officer, the creation of an independent review mechanism within the Executive Office of the President, and the implementation of new accountability standards, among others.
While the board also weighed the consequences of requiring a warrant or court order for Section 702 queries of U.S. citizens, it ultimately concluded that such a requirement would hinder intelligence agencies’ efforts to detect national security threats.
“Getting a warrant, or any other court order, prior to each U.S. person query conducted by an authorized user of an intelligence agency is not only impractical because there would be too many requests to process, preventing intelligence agencies from detecting threats in a timely manner, it is unjustified,” the report stated.
“Often, there is not enough information to prove probable cause when a U.S. person query is being conducted—it likely cannot be determined at that point whether the U.S. person is a potential victim or perpetrator involved in a foreign threat to the United States.”
Sharing the report on July 31, national security adviser Jake Sullivan and principal deputy national security adviser Jon Finer said the administration agreed with the PIAB’s conclusion that Section 702 should be reauthorized.
“Section 702 of the Foreign Intelligence Surveillance Act (FISA) is one of the nation’s most critical intelligence tools used to protect the homeland and the American people,” they wrote in a joint statement.
“Thanks to intelligence obtained under this authority, the United States has been able to understand and respond to threats posed by the People’s Republic of China, rally the world against Russian atrocities in Ukraine, locate and eliminate terrorists intent on causing harm to America, enable the disruption of fentanyl trafficking, mitigate the Colonial Pipeline ransomware attack, and much more.”
Further agreeing with the PIAB’s conclusion on warrants, the officials added that the administration would review the board’s proposed reforms.
Reauthorization
While Section 702 may have won the PIAB’s approval, Congress will have the final say on whether to reauthorize the program. And with some members having reportedly been the subject of FISA abuse themselves, the program’s fate is anything but settled.
For example, a newly declassified court order (pdf) revealed earlier in July that an unnamed FBI analyst had wrongly searched the Section 702 database “using the last names of a U.S. Senator and a state senator” in June 2022. The names of the elected officials in question weren’t disclosed in the partially redacted ruling.
Further, Rep. Darin LaHood (R-Ill.) has suggested that he, too, was the victim of an unlawful FISA query after the Office of the Director of National Intelligence reported in 2021 that a sitting member of Congress had been the target of multiple violations.
“I want to make clear the FBI’s inappropriate querying of a duly elected member of Congress is egregious and a violation not only that degrades the trust in FISA, but is viewed as a threat to the separation of powers,” Mr. LaHood said on March 9 during a House Intelligence Committee hearing. “I have had the opportunity to review the classified summary of this violation, and it is my opinion that the member of Congress that was wrongfully queried multiple times solely by his name was, in fact, me.”
Amid such reports, some on Capitol Hill have questioned the need to reauthorize Section 702, with Rep. Matt Gaetz (R-Fla.) leading the charge to allow the program to expire.
“The persistent abuse of Section 702 of FISA underscores the disturbing trend of our federal government being weaponized against its people,” the congressman said on July 11. “The blatant misuse of warrantless surveillance powers targeting Americans’ communications should not be accepted or reauthorized. We must uphold national security without sacrificing the constitutional rights of our fellow Americans.”
A resolution that Mr. Gaetz put forward to allow the program’s lapse has been cosponsored by Reps. Eli Crane (R-Ariz.), Paul Gosar (R-Ariz.), Marjorie Taylor Greene (R-Ga.), Thomas Massie (R-Ky.), and Matt Rosendale (R-Mon.).
