The FBI – Still as Transparent as the Muddy Mississippi

​Friday’s government report on surveillance from the Office of the Director of National Intelligence (ODNI) shows that the number of times the FBI searched for Americans’ data in the Section 702 database fell by 95 percent from 2021 to 2022.
 
This proves, the FBI claims, that its “culture of compliance” and reformation of its internal processes are working. Agents must now affirmatively opt-in to Section 702, whereas before, the FBI says, they could bumble into using Section 702 data without fully realizing it.
 
In terms of raw numbers, the FBI searched the Section 702 database almost 120,000 times last year, down from around 3 million such searches in 2021. And almost all of those 120,000 queries were to seek out connections between Americans’ communications and foreign spies and security threats. Slightly different definitions yield 200,000 as the number of such queries, but still a significant drop from 3 million.
 
Civil liberties advocates and their champions on the Hill are not impressed.
 
As Congress faces the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act, Members from both parties continue to insist that statutory reforms be made in Section 702 to compel FBI compliance with the Fourth Amendment requirement for a probable cause warrant.
 
The FBI has been caught in the past using these surveillance tools for purely domestic crimes, ranging from bribery to health care fraud, that clearly should have required a warrant. FBI agents have delved into Section 702-derived information to do background checks on journalists, community leaders, religious communities, and activists, and at least one Member of Congress, Rep. Darin LaHood (R-Ill).
 
Perhaps this explains why Rep. LaHood, with House Permanent Select Committee on Intelligence Chairman Rep. Mike Turner (R-OH), issued a cool response to the ODNI report:
 
“While there was a sharp decline in U.S. person queries from December 2021 to November 2022, it is incumbent upon Congress, not the Executive Branch, to codify reforms to FISA Section 702.”
 
Translation: FBI, we still don’t trust you – Congress is going to have to enact rules to make you adhere to the Fourth Amendment’s requirement for a probable cause warrant.
 
It’s easy to see why. If the FBI’s programmatic change to opt-in is what made the difference, then either the great majority of queries before changes were made to the FBI system were unlawful – likely many millions of unlawful searches – or the FBI is willing to forgo a huge number of lawful queries for the sake of compliance. If you buy the FBI’s arguments, they are doing this despite the bureau’s often dire warnings that any pullback would result in massive risks to national security and public safety.
 
So which is it?
 
“Is 200,000 warrantless queries better than 3.4 million warrantless queries?” Elizabeth Goitein of the Brennan Center for Justice’s liberty and national security program told The Washington Post. “When you ask the question, you get a sense of how warped the universe we’re in is – that somehow 200,000 warrantless searches a year are an acceptable number.”
 
We add that it’s as if the residents of cities the size of Montgomery, Alabama, or Tacoma, Washington, were illegally surveilled. Does that sound like something to celebrate?
 
The FBI responds that many of its searches are conducted to protect victims from cybercrimes. But there is, Goitein says, no “victim exception” to the Fourth Amendment. “They are basically admitting that they’re searching Americans’ communications and most private, personal information without probable cause.”
 
All of which begs the question – if you think there’s a crime, why not obtain a criminal search warrant?
 
Worse, Congress and the public are left to look at this latest report through a glass, darkly. The FBI is not transparent in its methodology. It does not give a full accounting of the rules by which it catalogs and lists its searches. If the Drug Enforcement Administration runs a query and shares what it learns about an American citizen with the FBI, is that counted under these rules? How does the FBI count batch queries (multiple queries under a common justification) over one-offs?
 
Only Congress can dispel the murkiness by demanding answers. And as it does, expect to see even more reasons for statutory reforms as the precondition for the reauthorization of Section 702.