Patel: More than 200,000 Reasons Why Americans Don’t Trust FBI’s Handling of Section 702

The confirmation hearings of Kash Patel as FBI director and Tulsi Gabbard as Director of National Intelligence should give civil libertarians across the ideological spectrum hope for greater sensitivity about Americans’ privacy by the intelligence community’s new leaders.
 
Patel’s hearing in the Senate Judiciary Committee did start out on a discordant note. Sen. John Cornyn (D-TX) asked Patel about whether probable cause warrants are needed for the Foreign Intelligence Surveillance Act Section 702 “queries” of U.S. persons. Patel described such warrants as impractical. “It’s almost impossible to make that function and serve the national, no-fail mission,” the nominee said.
 
But Patel also acknowledged the Section 702 authority – enacted by Congress to enable the surveillance of foreign targets on foreign soil – has been widely abused. As we’ve reported, the FBI has used Section 702 to spy on 19,000 donors to a congressional campaign, the private data of sitting Members of the U.S. Senate and House, as well as to provide evidence for ordinary domestic cases.
 
“The concern that the American people have with FISA 702 is not about the real-time collection of communications regarding foreign targets,” Sen. Lee (R-UT) told Patel, describing the government’s warrantless accessing of Americans’ communications. “Under current law, they [FBI] routinely access that without getting a warrant … They’re not supposed to use this for lighter, transient reasons. They are supposed to have a perfectly good reason, and yet we’ve found that on hundreds of thousands of occasions, they have accessed the private communications of Americans searching for those individual Americans by name, by number, by email address, whatever it is, without a warrant, or anything tantamount to it. On occasion, they’ve even been used for overtly nefarious reasons. One agent decided to look in on his father because he suspected his father might be having an extramarital affair. On another occasion, an agent looked at people who were thinking about renting an apartment from him.”
Patel added that the FISA court has reported that “255,000” illegal, improper queries of American citizens had occurred. He said “that’s 255,000 reasons why the American people don’t trust it. And that is why we must work together, Congress and me, to restore that trust, and protect that mission.”
 
“Music to my ears,” Sen. Lee said. “You are the very first FBI director or FBI director nominee who when asked about this hasn’t said, ‘oh, don’t worry about it. We’ll handle it okay. We’ve got good people on the inside. We would never breach the trust of the American people.’ Do you know what? They were lying … You will not lie. That is why I wholeheartedly support you.”
 
In the Senate Select Committee on Intelligence, Sen. Ron Wyden (D-OR) put a series of brisk questions to Gabbard and mostly was pleased by her answers. Gabbard affirmed the written responses she had given the committee, holding that when Americans’ communications are surveilled, warrants “generally” should be required – with emergency circumstances. On the expansion of the definition of electronic communications service providers – which obligates virtually all businesses that offer Wi-Fi to their customers to secretly turn over their communications to the NSA – Gabbard deferred. She agreed to continue a Biden Administration Department of Justice policy that restricts government access to the notes and sources of journalists.
 
While these two nominees’ answers are encouraging, we will have to wait and see if their actions follow their words. In particular, Kash Patel’s framing of Section 702 surveillance as always a “no-fail” goal, if it encompasses domestic crime, elevates constant urgency above procedural safeguards and the Fourth Amendment.
 
One thing is clear – both an FBI Director Kash Patel and a Director of National Intelligence Director Tulsi Gabbard would be far more sensitive than their predecessors to the concerns of civil libertarians about Americans’ privacy and open to hearing from outside of the intelligence community echo chamber.

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