Congress Must Hold Hearings Before Debating Reauthorization of Section 702 Surveillance Law

Revelation of Almost 3.4 Million Warrantless U.S. Searches by FBI

​Today’s news that the FBI conducted almost 3.4 million warrantless searches using the identities of people inside the United States from Dec. 1, 2020, to Nov. 30, 2021, comes with a lot of caveats from officialdom.
 
Here are the excuses the intelligence community gave to The Wall Street Journal over this latest scandal.

• The real count of warrantless searches is undoubtedly lower, given the complexities in counting what is and isn’t a search.

 

• Any time the name, telephone number, email address or social security number of a “U.S. person” is used as a query term, it counts as a “search.”

 

• More than one-half of the searches were related to the threat of Russian hacking and its threat to U.S. national security.

 
The days of taking the FBI on its word, however, ended when Efrem Zimbalist Jr. (yes, we’re dating ourselves) quit driving down Constitution Avenue to HQ. The FBI has lost the right to uncritical acceptance of its claims after:

• Judge James E. Boasberg of the secretive Foreign Intelligence Surveillance Court took the rare step of publicly rebuking the FBI for abusing its Section 702 authority – which grants the FBI ability to review data in relation to a foreign intelligence investigation.

 

• In 2019, the Inspector General of the Department of Justice examined the actions of the FBI in the politically charged Crossfire Hurricane investigation, finding the agency guilty of “serious performance failures.” One of them was the criminal act by an FBI lawyer who submitted falsified evidence for the FISA court.

 

• Now the Department of Justice and FBI are stonewalling a properly filed Freedom of Information Act request asking if the agency has spied on Members of Congress who publicly question its surveillance and unmasking practices.

 
Next year, Congress must consider the reauthorization of Section 702, the post 9/11 law passed to give the National Security Agency power to collect intelligence from international communications. The House and Senate Judiciary Committees should hold hearings to ask:

• When any supposedly extraneous cases described by the FBI are excluded, what is the real number for warrantless searches of Americans’ data?

 

• Have there been programmatic changes to how 702 data is being collected between the NSA and the FBI?

 

• How long is the data of Americans retained?

 

• Has the FBI used this data to perform backdoor searches – using leads from seized data to surreptitiously begin the investigation of Americans for crimes? If so, this would mean that criminal charges could be based on warrantless searches in defiance of the Fourth Amendment.

 
We’ve long called on the House and Senate Judiciary Committees to hold hearings into this and similar surveillance practices. We need to learn about the scope of potential abuses long before we begin to debate 702 reauthorization in 2023.