FBI Official Advocates for the Use of Warrantless Wiretaps within US Boundaries

By Dell Cameron and William Turton

A top FBI official is encouraging employees to continue to investigate Americans using a warrantless foreign surveillance program in an effort to justify the bureau’s spy powers, according to an internal email obtained by WIRED.

Known as Section 702, the program is controversial for having been misused by the FBI to target US protesters, journalists, and even a sitting member of Congress. US lawmakers, nevertheless, voted to extend the program in April for an additional two years, while codifying a slew of procedures that the FBI claims is working to stop the abuse.

Obtained by WIRED, an April 20 email authored by FBI deputy director Paul Abbate to employees states: “To continue to demonstrate why tools like this are essential to our mission, we need to use them, while also holding ourselves accountable for doing so properly and in compliance with legal requirements.” [Emphasis his.]

Abbate added: “I urge everyone to continue to look for ways to appropriately use US person queries to advance the mission, with the added confidence that this new pre-approval requirement will help ensure that those queries are fully compliant with the law.”

“The deputy director’s email seems to show that the FBI is actively pushing for more surveillance of Americans, not out of necessity but as a default,” asserts US representative Zoe Lofgren, a Democrat from California. “This directly contradicts earlier statements from the FBI during the debate over Section 702’s reauthorization.”

After publication, FBI spokesperson Susan McKee provided a statement from the bureau that inaccurately claimed the article “alleged that the FBI instructed its employees to violate the law or FBI policies.” The statement clarified that Abbate’s email “emphasized Congress’ recognition of the vital importance of FISA Section 702 to protect the American people and was sent to ensure that FBI personnel were immediately aware of, and in compliance with, the privacy enhancing changes the law has put in place.”

Authorized under the Foreign Intelligence Surveillance Act (FISA), the 702 program allows the government to request aid from American companies to intercept a variety of communications—calls, texts, emails, and possibly other forms of messaging—all without needing a search warrant. The crucial requirement for the program is that at least one of the recipients (the individual “targeted”) be a foreigner reasonably thought to be outside of US soil.

In a statement to Congress last year, FBI director Christopher Wray emphasized that the bureau’s focus was on “dramatically reducing” the number of times its agents scoured the 702 database for information on Americans.

The frequency with which the FBI runs US phone numbers or email accounts through the 702 database is hazy. The bureau first began reporting the figure publicly in 2021, releasing the total number of times that these searches took place. That number was 2.9 million. Since then, the FBI has “updated its counting methodology” to count only unique searches. (To wit, running the same phone number through the database multiple times a year now counts as a single search.) As a result, at least in part, the number dropped to 119,383 the following year. In 2023, under more stringent guidelines, it dropped further, to 57,094.

Last year, a review by the Justice Department found that the FBI’s compliance rate hovered around 98 percent, a figure that Wray and other FBI officials have touted frequently in defense of the program. Without knowing the exact number of queries, the number of noncompliant searches is impossible to calculate. At a minimum, the FBI conducted more a thousand searches in violation of its own policies, which are now law. Under its new system of counting, the figure could be much higher. Only the Justice Department knows.

In a statement earlier this year, the FBI claimed that many of these errors are the result of its employees failing to label whether a search, in fact, targeted a “US person.”

While the 702 program has been widely criticized by privacy and civil liberty proponents, the US House Intelligence Committee is throwing a party Wednesday night to celebrate the recent extension of the 702 surveillance program, multiple sources tell WIRED.

Matt Simon

Kate O’Flaherty

Joel Khalili

Boone Ashworth

Mike Turner, chair of the House Intelligence Committee, and Jim Himes, ranking member, extended invites for a “bipartisan celebration” of the continuation of the 702 program earlier this week. Named as “FISA Fest”, the event is set to occur within a reception room at the US Capitol building this Wednesday night.

A request for comment from a spokesperson for the House Intelligence Committee went unanswered.

Both Himes and Turner played crucial roles in ensuring the FBI maintained their warrantless access to 702 data. Over the course of numerous “briefings” since October, the two have encouraged members of both their respective parties to refrain from excessively limiting the authority of the FBI. Instead, they promoted the new procedures, devised by the FBI themselves, as a sufficient safeguard against future misuse.

Last month, Himes and Turner succeeded in thwarting an amendment that would mandate FBI employees to secure search warrants before gaining access to the communications of US citizens collected by the program. This amendment, which the Biden White House was against, did not pass, resulting in a tied vote of 212-212. As it stands, under the 702 statute, FBI employees are required to consciously “opt in” to access the surveillance data. Before conducting “batch queries” of the database, they need to get approval from an FBI attorney. Currently, requests for the communications of elected individuals, reporters, academics and religious figures are all considered to be “sensitive” and need the green light from higher-ranked officers.

Section 702 was established by Congress in 2008 to legalize an existing surveillance program managed by the National Security Agency (NSA). At the time, this program was more focused, intercepting communications that were at least partially domestic but involved a target believed to be a confirmed terrorist. With Congress’s backing, the surveillance program steadily broadened its range to include new threats, such as cybercrime, drug trafficking, and arms proliferation.

702 surveillance supporters often suggest that Americans who are wiretapped are in communication with terrorists, a claim that has been repeatedly stated. However, this claim is doubtful. The official position of the US government states that it is unfeasible to identify which US citizens are under surveillance or even the total number of those surveilled. The main goal of the 702 program is to gather “foreign intelligence information,” a term covering not only terrorism and act of sabotage but also information needed for the government to conduct its “foreign affairs.”

Critics of surveillance worry that the number of possible targets far exceeds what is disclosed in non-classified settings. It is widely accepted that the US government, as with any government with spy capability, tries to find reasons to spy on foreign allies, firms, and even news publications. Provided that the target is foreign, they do not have privacy rights.

The extent of the 702 program stays unclear, even to members of Congress who contend it should not be further restricted. Mark Warner, the Senate Intelligence Committee chair, conceded to reporters this week that the text in Section 702 needs a “fix”, despite giving his vote last month to make the existing text law.

FISA experts had warned for months that new language introduced by the House Intelligence Committee is far too vague in the way it describes the categories of businesses the US government can compel, fearing that the government would obtain the power to force anyone with access to a target’s online communications into snooping on the NSA’s behalf—IT workers and data center staff among them.

A trade group representing Google, Amazon, IBM, and Microsoft, among some of the world’s other largest technology companies, concurred last month, arguing that the new version of the surveillance program threatens to “dramatically expand the scope of entities and individuals” subject to Section 702 orders.

“We are working on it,” Warner told The Record on Monday. “I am absolutely committed to getting that fixed,” he said, suggesting the best time to do so would be “in the next intelligence bill.”

Updated at 6:18 pm ET, May 8, 2024: Added comments from the FBI.

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