Lawmakers across the political spectrum are reiterating calls to revise a key provision of the Foreign Intelligence Surveillance Act after a declassified court ruling revealed the FBI misused it last year.
“Another gross overstep by the [FBI] that further erodes the public's trust,” Sen. Rick Scott (R-FL) said in a statement regarding the revelation, adding, "AG [Merrick] Garland: Who is being held accountable for this?!"
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The ruling, made by the Foreign Intelligence Surveillance Court in April and declassified in redacted form by Director of National Intelligence Avril Haines last week, said an FBI analyst inappropriately conducted four search queries of a U.S. senator’s and state senator’s names in June 2022.
The analyst had information that the legislators were the target of a foreign intelligence entity but his or her queries of the senators did not meet search standards, the ruling said.
The ruling also revealed that an official had conducted a search using a state judge’s social security number after the judge had issued a complaint to the FBI.
“The FBI improperly used an intelligence database (again) to search for information about a U.S. senator and other state officials,” House Judiciary Committee Chairman Jim Jordan (R-OH) said of the ruling.
He added, "It won't stop until Congress reins in their power."
Jordan and his Democratic counterpart, ranking member Rep. Jerry Nadler (NY), are typically at odds on policy but have found rare common ground in that they are both seeking reforms to FISA's section 702, which expires this year. Citing civil liberties concerns, both have vowed to oppose its reauthorization until changes to section 702 are made.
The provision, which allows the FBI to conduct warrantless surveillance for the purpose of collecting foreign intelligence information, has been a point of contention for years because of its uniquely flexible requirements compared to other provisions in FISA.
While it is intended to allow the FBI to surveil foreigners, Friday's ruling was the latest in a yearslong string of discoveries that show the bureau has violated U.S. citizens' privacy with the tool. The FBI has said those instances were unintentional in almost every circumstance and that recent reforms in 2021 and 2022 have drastically improved the FBI's compliance rate with FISA.
The court ruling corroborated these improvements, saying it has not seen "violations of comparable magnitude" since reforms were implemented in the last two years.
"It is important to note neither the U.S. Senator nor the state senator were surveilled, and no new information was collection on either of them. ... The primary focus should be the Court found the FBI's compliance rate with the query standard to be over 98% after our reforms were implemented," the FBI said in a statement.
FBI Director Christopher Wray wrote in letters to Senate and House leaders on Friday that the 702 authority has also overall been imperative to national security and that it needs access to the 702 databases to "keep countering ... foreign threats," such as international terrorism plots and foreign and hostile cyber actors.
Sen. Ron Wyden (D-OR), a longtime privacy hawk, said that last week's ruling nevertheless "highlights the need for reforms to protect" privacy of U.S. citizens.
“The revelation that 702 is used against ‘foreign governments and related entities’ directly impacts Americans’ privacy, as American journalists, businesspeople, students, and others all have legitimate reason to communicate with foreign governments," Wyden said. "The fact they can be swept up in 702 collection further highlights the need for reforms to protect their privacy."
Sen. Mike Lee (R-UT) stated on social media of the ruling: “We need a ‘clean’ reauthorization of FISA 702 like we need [please fill in the blank].”
Lee added, “‘Backdoor searches of the American people’s private conversations under 702 are an affront to the Fourth Amendment and hundreds of years of jurisprudence.”
House Intel Committee Chair Mike Turner (R-OH), whose committee shares jurisdiction over FISA with Judiciary, has said "there is no support in Congress for a clean reauthorization of 702" and has appointed Rep. Darin LaHood (R-IL) to spearhead a working group to craft reform proposals.
Turner, who has been relatively sympathetic to the FBI's need for FISA authority, deems the tool "essential," while Jordan has conveyed a desire for a dramatic overhaul that could significantly limit or eliminate the FBI's access to the tool and leave it to other entities in the intelligence community.
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The Biden administration has urged a reauthorization of the provision with no changes to it in its current form but must overcome the vocal objections from the various key members of Congress before the end of the year.
The ruling last week follows Haines declassifying a court opinion in May that showed the FBI had, prior to its 2021-2022 reforms, improperly used FISA's section 702 more than 278,000 in the last several years, including in its investigations into the January 6 Capitol riot and protests related to the death of George Floyd.