New FISA Court Opinion Reveals More of the Same: Systemic Misuse of FISA 702
(WASHINGTON) The Office of the Director of National Intelligence (ODNI) released a new FISA Court opinion today on FISA Section 702 that demonstrates a continued pattern of violating the rules regarding U.S. person queries and shocking new revelations of abuse. FISA Section 702, enacted in 2008, was originally justified as a counter-terrorism authority focused exclusively on foreigners abroad, but it has morphed into a sprawling warrantless surveillance system for sweeping in and scrutinizing communications of Americans and others in the United States.
In particular, the FISA Court revealed that in 2022, the FBI conducted improper queries to pull up the communications of a U.S. Senator, an unnamed State Senator, and a judge who had complained to the FBI about civil rights violations by a local police chief. None of these queries were likely to return foreign intelligence information or evidence of crimes.
Jake Laperruque, Deputy Director of CDT’s Security & Surveillance Project, says:
“One warrantless query for Americans’ private communications is one too many, and this opinion shows the government is still conducting hundreds of thousands per year, including thousands in violation of their own lax rules.
These new revelations of misconduct show yet again that lack of oversight invites abuse, and that it’s impossible to fix FISA 702 without adding a warrant rule for US person queries.”
Despite government claims that the situation is improving, noncompliance is still rampant. An audit of an FBI office—which had previously queried a batch of 19,000 campaign donors—found that even after new internal measures, improper queries were still occurring over 4 times per week on average.
The FISA court opinion stated FBI US person queries have “leveled off” at an astounding 40,000 to 50,000 per quarter, consistent with prior reporting of roughly 200,000 US person queries per year; even with the improved compliance rate cited this would result in thousands of non-compliant queries per year. The court also revealed new instances where queries were conducted in circumstances without the court order required by law, a statutory requirement that the FBI has violated in every applicable incident since its creation in 2018.
Laperruque added:
“The new information gives no cause for celebration. Claiming this level of warrantless surveillance and abuse is a positive sign is like giving a restaurant a five-star review because the meal was awful but didn’t give you food poisoning like last time.”
Additionally, the FISA Court opinion revealed a troubling expansion of queries by the NSA, conducted to vet individuals applying for immigration benefits. While the court’s opinion does not specify a range of benefits, it does indicate that some US persons who are lawful permanent residents are included. These queries are conducted on a dragnet basis and do not require expectations of returning foreign intelligence information or evidence of a crime.
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