FBI Deputy Director’s “Use It or Lose It” Approach to Warrantless Spying

​Well, that didn’t take long.
 
A little more than three weeks ago Congress reauthorized FISA Section 702, a surveillance program enacted to authorize foreign surveillance but which is often used by the FBI to snoop on Americans’ communications caught up in the NSA’s global data trawl. Central to that debate was whether 702 should be made to conform to the Fourth Amendment’s bar against unreasonable searches.  
 
The House and Senate fiercely debated late into the night over whether to reauthorize this flawed program. Supporters said it is vital to national security. Critics said that is no excuse for the FBI using Section 702 to surveil large numbers of Americans in recent years, including sitting Members of the House and Senate, journalists, politicians, a state judge, and 19,000 donors to a Congressional campaign.
 
In the House that debate culminated in a 212 to 212 tie vote. That’s how close advocates of privacy and freedom for law-abiding citizens from warrantless government surveillance came to victory.  
 
The intelligence establishment and its champions on Capitol Hill won many votes with promises. They included in their bill a codification of a list of new internal FBI procedures that they promised would curb any abuses of Americans’ privacy. FBI Director Christopher Wray promised that agents would be “good stewards” who would protect the homeland “while safeguarding civil rights and liberties.”
 
On April 19, the Senate finalized the reauthorization of Section 702 and sent it to President Biden to be signed into law.
 
On April 20, FBI deputy director Paul Abbate emailed Bureau employees, stating: “To continue to demonstrate why tools like this [Section 702] are essential, we need to use them, while also holding ourselves accountable for doing so properly and in compliance with legal requirements.” He added, “I urge everyone to continue to look for ways to appropriately use US person queries to advance the mission …”
 
Wired, which obtained a copy of the memo, quoted Rep. Zoe Lofgren (D-CA), who said that Deputy Director Abbate’s email directly contradicted earlier assertions from the FBI made during the debate over Section 702’s reauthorization.
 
“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,” Rep. Lofgren said.
 
The FBI reports it has drawn down the number of such U.S. person queries from about 3 million in 2021 to 57,094 in 2023. As Wired notes, however, the FBI methodology counts multiple accessing of Americans’ personal identifier, such as phone numbers, as just a single search. As Wired reports, the FBI’s proud assertion that its compliance rate of 98 percent with its more stringent rules would still leave it with more than 1,000 violations of its own policies.
 
With the deputy director arrogantly pushing the Bureau to make greater use of Section 702 for the warrantless surveillance of Americans, we can only wonder what the numbers of U.S. person searches will be in the next few years.
 
Whatever happens, the more than 150 civil liberties organizations, including PPSA, will be back when Section 702 is next up for reauthorization in less than two years. The Constitution’s protections of the people cannot be ignored.