Sen. Lees Challenges Director Wray on FBI Disregard for FISA Law

Video starts at Sen. Mike Lee's questioning of FBI Director Wray (1:02:00 mark).

​At a Senate Judiciary Committee hearing yesterday, Sen. Mike Lee (R-UT) neatly summarized the FBI’s spotty observance of Section 702 of the Foreign Intelligence Surveillance Act (FISA), up for reauthorization next year, in his questioning of FBI Director Christopher Wray. Sen. Lee’s questions follow up on the revelation that the FBI used U.S. person information in FISA queries some 3.4 million times in a recent one-year period.
 
Sen. Lee said:
 
“As you know, Director Wray, Section 702 authorizes the collection of electronic communications. Not just the metadata but the content of the communications themselves, including communications of non-U.S. persons outside the United States. But, as you know, this inevitably leads to the incidental collection of communications that involve or include U.S. persons, including U.S. citizens.”
 
The Utah senator reminded Director Wray that the 2018 reauthorization of Section 702 required the FBI to obtain an order from the Foreign Intelligence Surveillance Court to authorize querying the database for communications involving U.S. persons and citizens in criminal investigations not involving national security. Why then, Sen. Lee asked, did a recently released transparency report estimate that the FBI did not obtain a single order under section 702 from the Foreign Intelligence Surveillance Court in 2021?
 
The FBI itself, after all, identified at least four instances in which the electronic communications of U.S. persons “were unlawfully searched without the required order from the Court?” Sen. Lee asked: “Can you tell me how you found those four instances and how you can be certain that there are not more than four instances in which someone did a backdoor search of U.S. persons’ communications?”
 
The FBI Director said he could not recall the “various oversight mechanisms we have.” He noted that the FBI set up a new office of internal audit focused on FISA compliance.
 
Sen. Mike Lee replied that he understood these authorities are needed to protect the American people.
 
“But when it comes to American citizens, they have a reasonable expectation of privacy. When you have that much ability to collect that much information, record that many conversations of unsuspecting, law-abiding American citizens, there really do have to be procedures in place to make sure that there is probable cause and a probable cause-based warrant in order to search those, because that really is just a backdoor search and a potential end run around the Fourth Amendment.”
 
Senator Lee expressed skepticism that the four known surveillances of Americans did not require a FISC order. And said he would hold Director Wray to his promise to provide more information.