In total, the House Intelligence Committee lists 45 “improvements” that it wishes to include in coming legislation that would enable the 702 program to continue, including criminal liability for 702 leaks involving an American’s communications; enhanced penalties for federal employees who violate FISA procedures; and a new court-appointed counsel able to scrutinize FISA application by the government aimed at surveillance of a US citizen.
The report was finalized by a working group composed of three Republican members: Turner, who hails from Ohio, and representatives Darin LaHood and Brian Fitzpatrick of Illinois and Pennsylvania, respectively. The working group stresses that federal courts have time and again ruled the 702 program constitutional—when its procedures are not skirted by negligent employees and willful violators for nefarious or self-serving means.
The FBI and the Biden administration at large have lobbied Congress to reauthorize the 702 program as is, ignoring calls for reform that have grown louder since the beginning of the year, manifesting this month in the form of a comprehensive privacy bill—the Government Surveillance Reform Act—legislation that likewise seeks to impose warrant requirements on the FBI, which at present can conduct searches of 702 data without a judge’s consent, so long as it’s “reasonably likely” to find evidence of a crime.
FBI director Christopher Wray, speaking before the House Homeland Security Committee on Wednesday, denounced plans to impose a warrant requirement under 702, calling it a “significant blow” to the bureau’s national security division.
“A warrant requirement would amount to a de facto ban,” Wray says, noting the FBI would often be unable to meet the legal standard necessary for the court’s approval, and that the processing of warrants would take too long in the face of “rapidly evolving threats.”
The report goes on to detail “significant” violations at the FBI, most previously reported to the Foreign Intelligence Surveillance Court (FISC) in 2022, before they were made known to the public in May. The majority of the incidents—including one in which an FBI analyst conducted “batch queries of over 19,000 donors to a congressional campaign”—took place prior to a package of “corrective reforms” that the FBI is crediting with practically curing its compliance issues.
The report attributes “most” misuses of 702 data to “a culture at the FBI” wherein access was granted to many “poorly trained” agents and analysts with few internal safeguards. As one example, it states that FBI systems for storing 702 data had not been designed to make employees “affirmatively opt-in” before conducting a query, “leading to many inadvertent, noncompliant” issues of the system. “It also seems that FBI management failed to take query compliance incidents seriously,” the report says, “and were slow to implement reforms that would have addressed many of the problems.”
