Intelligence Committees Bills Pave the Road for Continued FISA 702 Abuse

As time ticks down to the expiration of Section 702 of the Foreign Intelligence Surveillance Act (FISA 702), Congress is finally kicking into gear with legislative proposals. Earlier this month, a bipartisan group of lawmakers introduced the Government Surveillance Reform Act, a bold reform bill that would comprehensively fix FISA 702 and other surveillance issues. 

Recently, members of the House Permanent Select Committee on Intelligence (HPSCI) issued a report on FISA 702 setting forth the outline of a purported reform bill, while a similar bill co-led by the Chair and Vice Chair of the Senate Select Committee on Intelligence (“SSCI”) was just introduced. However, the Intelligence Committees’ bills fail to address the most fundamental issue for this year’s debate: preventing improper US person queries. They prohibit warrantless queries only for a select set of circumstances that practically never occurs, and do not require warrants for the broad range of queries that have led to a litany of abuse. 

FISA 702 can only be used to target non-US persons located abroad, but this warrantless surveillance power still sweeps up a huge number of Americans’ communications. The FBI, CIA, and NSA then deliberately seek out and pull up those private communications by conducting US person queries. US person queries occur on a mass scale—in 2022 the FBI conducted over 200,000—and have been frequently abused for domestic spying.  

Despite this, the Intelligence Committees bills’ primary approach to US person queries is to codify agency rules, and hope that the FBI, CIA, and NSA can be trusted to police themselves. That approach has failed again and again for the past decade. Notably, since the implementation of new internal rules between June 2021 and March 2022, there have been thousands of improper US person queries. This includes publicly documented incidents of queries of a US Senator, a state Senator, a state judge alleging civil rights abuses by a local police chief, and multiple individuals an analyst had met through an online dating service.

The Intelligence Committees bills make a mockery of the concept of prohibiting warrantless US person queries, setting up a window-dressing restriction that would impact less than one-thousandth of one percent of the FBI’s US person queries (and exempt NSA and CIA queries entirely). Specifically, the HPSCI bill would require a warrant only for US person queries that are conducted “for the purpose of Evidence of a Crime only,” while the SSCI bill would prohibit queries that are “solely designed to find and extract evidence of criminal activity.” These rules encompass queries that are designed only to return evidence for criminal investigations, and exclude all queries that are designed in whole or in part to return foreign intelligence information. 

According to the Office of Director of National Intelligence’s most recent transparency report, between December 2021 and November 2022 the FBI conducted over 204,000 US person queries, but only 16 were classified as conducted for “evidence of a crime-only purpose.” And of those 16, all but 2 would be exempt under an exception for queries conducted to produce or preserve information in litigation. Even the SSCI bill’s defenders acknowledge this proclaimed prohibition that affects less than 1 in 100,000 queries is “an almost-entirely optical exercise—banning a category of queries that is all-but an empty-set anyway.”

The HPSCI bill also includes a provision prohibiting queries “whose purpose is either (1) to suppress or burden criticism, dissent, or the free expression of ideas or political opinions by such U.S. person, or (2) to disadvantage such U.S. person based on their ethnicity, race, gender, sexual orientation, or religion” (emphasis added). But so long as a query’s purpose is recorded as an effort to obtain foreign intelligence information, it would be exempt from this prohibition, just as it would be exempt from a warrant requirement.

To understand the danger of such toothless rules, it’s worth examining some of the more notorious abuses of FISA 702 in recent years. Among numerous publicly documented cases, the FBI conducted improper US person queries of:

• Over 140 Black Lives Matter protesters;
• A batch of 19,000 donors to a Congressional campaign;
• A Member of the House of Representatives;
• A US Senator;
• A state Senator; and
• A local political party.

All of these queries were ostensibly conducted in whole or in part for foreign intelligence purposes. Because of this, none of these queries would be classified as an evidence-of-crime-only query, and none would be prohibited or require a judicial warrant under the Intelligence Committees’ bills. 

In addition to the incidents listed above, in recent years the FBI has conducted improper US person queries of a state judge alleging civil rights violations by a local police chief, journalists, and political commentators. While the limited information on these incidents in publicly released FISA Court opinions and compliance reports does not detail the purported purpose of these queries, so long as returning foreign intelligence was listed as a purpose, they also could be conducted under the Intelligence Committees’ bills without any judicial approval.

Absent independent oversight, such abuses will continue in the future. And adding insult to injury, the SSCI bill would extend FISA 702 for a jaw-dropping 12 years, more than double the length it has ever been allowed to operate previously. By not only leaving the status quo largely in place but also giving the FBI and other intelligence agencies a free hand for more than a decade, the bill would facilitate even greater abuse and reckless conduct going forward.  

The Intelligence Committees bills fail to create any meaningful safeguards that would prevent improper US person queries and halt the repeated and continued misuse of FISA 702. They are not acceptable measures to address ongoing harms to civil rights and civil liberties. And while Republicans and Democrats alike are raising the alarm over political weaponization of surveillance and federal law enforcement, those shouts will ring hollow from any lawmakers that support handing the executive warrantless surveillance power without independent checks and oversight. 

The lack of basic safeguards on US person queries in the bills is all the more frustrating given that there is no indication that robust rules would impair the value FISA 702 provides. The HPSCI report that previewed the HPSCI bill includes a 5-page section on “Examples of Section 702 Successes,” which details use of Section 702 to address fentanyl trafficking, terrorism, cybersecurity, and threats from foreign adversaries. Yet this section does not include one single reference to US person queries providing any of this value. As I’ve written previously, the limited cases the administration and intelligence agencies have cited where US person queries proved useful would not be prevented by a warrant rule.

Members of Congress should reject the Intelligence Committees’ bills, and only support legislation reauthorizing FISA 702 if it includes a consistent warrant requirement for US person queries, such as the Government Surveillance Reform Act.