U.S. intelligence agencies pushing lawmakers to reauthorize a controversial set of surveillance tools are hoping to get a boost from a new report showing fewer U.S. citizens and residents are getting swept up in the agencies’ collection efforts.
The just-released report by the Office of the Director of National Intelligence found that even as U.S. intelligence agencies are making greater use of collection authorities under the Foreign Intelligence Surveillance Act, the number of U.S. persons — citizens or legal residents — being targeted has declined steadily.
Friday’s transparency report said there were only 49 court-approved surveillance or search orders for U.S. persons in 2022, down from 67 in 2021 and from 102 in 2020.
Additionally, the number of U.S. persons subject to law enforcement queries after they were swept up in foreign electronic surveillance, under what is known as FISA Section 702, also saw a “significant decline,” according to the report, despite an overall increase in the use of the authorities.
FBI abused access, say some
FISA Section 702 allows for the National Security Agency and the FBI to conduct electronic surveillance and data collection of non-Americans. But such efforts sometimes pick up information on U.S. persons, and that has been a point of contention for some lawmakers and civil liberties groups who argue the FBI has abused its access to the data.
According to the report, the number of non-Americans targeted under FISA Section 702 jumped to 246,000 in 2022, an increase of more than 13,600 from the previous year.
However, the ODNI’s records indicated the FBI searches of the data for information on U.S. persons dropped by almost 96%.
“This reduction occurred following a number of changes FBI made to its systems, processes and training relating to U.S. person queries,” the report said.
FBI Director Christopher Wray has similarly touted internal reforms, telling lawmakers last month that the bureau’s own data showed searches for U.S. citizens or their information under Section 702 had dropped 93% from 2021 to 2022.
“We are absolutely committed to making sure that we show you, the rest of the members of Congress and the American people that we’re worthy of these incredibly valuable authorities,” he said at the time.
Yet the FBI’s assurances, and the new report from ODNI, have done little to assuage lawmakers charged with reauthorizing the FISA Section 702 authorities before they expire at the end of the year.
“We need to pass substantive and meaningful reforms to help deter abusive behavior by the FBI in the FISA process,” Representative Mike Turner, House Intelligence Committee chairman, and Representative Darin LaHood, both Republicans, said in a statement Friday.
“We must protect the American people’s privacy and civil liberties,” they said. “Without additional safeguards, a clean reauthorization of 702 is a nonstarter.”
LaHood, who said last month that the FBI searched for his name in foreign data multiple times under FISA Section 702, has been leading a bipartisan working group charged with proposing meaningful reforms.
Lawmakers have also been joined by human rights groups, who argue the latest data show problems remain.
“While the new statistics show a decline, the total number of searches is huge even now, and the intrusion on Americans’ privacy is undeniable,” Patrick Toomey, deputy director with the American Civil Liberties Union’s National Security Project, said in a statement.
“FBI agents are sitting at their computers and subjecting Americans to warrantless ‘backdoor searches’ hundreds of times per day,” Toomey said. “After years of FBI surveillance abuses, it’s time for Congress to step in and require the constitutional gold standard: a warrant.”
‘A vital source of intelligence’
Despite such concerns, U.S. intelligence officials have repeatedly urged lawmakers to renew the collection authorities, arguing they are critical to protecting Americans at home and U.S. interests abroad.
NSA Cybersecurity Director Rob Joyce earlier this month called FISA Section 702 “a vital source of intelligence.”
“I can’t do cybersecurity at the scope and scale we do it today without that authority,” he told an audience in Washington.
A day later, CIA Director William Burns told an audience at Rice University in Texas that FISA Section 702 has become an indispensable tool in combating drug cartels sending fentanyl into the U.S.
U.S. intelligence officials have previously credited FISA Section 702 warrantless surveillance authorities with providing information crucial in launching the strike that killed al-Qaida terror leader Ayman al-Zawahiri.
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