Newly declassified court documents revealed Friday that the FBI improperly searched for the name of a US senator in an intelligence database after indications of a foreign threat against the lawmaker, as the intelligence program has come under a barrage of criticism in Congress and from privacy advocates.
The database, which was created under Section 702 of the Foreign Intelligence Surveillance Act, allows US intelligence agencies to conduct broad searches to identify threats and leads related to foreign intelligence missions.
The new court filing comes during a bitter battle in Congress over whether to reauthorize Section 702, which is set to expire at the end of this year. While US agencies have touted improvement in properly using section 702 as a vital tool to identify and combat foreign threats, the law faces an uncertain future with lawmakers raising concerns over possible abuses.
After a court found in 2020 that that the FBI routinely failed to follow correct procedures for use of the database, the FBI implemented a series of reforms aimed at curbing misuse. Many of those guidelines applied to the standard for how queries are conducted on Americans – which were not met in the senator’s case, according to the court document.
“Section 702 is critical in our fight against foreign adversaries. We take seriously our role in protecting national security and we take just as seriously our responsibility to be good stewards of our Section 702 authorities,” FBI Director Christopher Wray said in a statement. “Compliance is an ongoing endeavor, and we recently announced new additional accountability measures.”
Section 702 allows US intelligence agencies to collect the phone calls and text messages of foreign targets overseas from US telecommunications providers without a warrant. The privacy debate centers on the collection of communications of Americans in touch with those foreign targets. Analysts at multiple intelligence agencies can then search databases for leads related to foreign intelligence missions.
Judge Rudolph Contreras outlined how the federal government had improved its use of Section 702 in his opinion, which was written in April but released Friday, as the FBI continues to implement strict reforms around the program and says it has dramatically reduced misuse.
Conteras, who was tasked with monitoring law enforcement’s compliance with the rules, wrote in the opinion that the FBI’s progress in following these rules is “encouraging” and that law enforcement “has been doing a better job in applying the query standard.”
But the judge noted some instances in which federal agents improperly conducted queries. Those instances, he wrote, include conducting improper searches for the names of a US senator, a state senator and a state judge. Contreras didn’t identify the lawmakers or the judge.
The filing revealed a US analyst had information last year that a “specific foreign intelligence service” was targeting the US senator as well as a state senator. The filing doesn’t provide more information about the incident.
This spring, US intelligence agencies released a report saying that the number of warrantless FBI searches of Americans’ electronic data under the intelligence program dropped sharply from millions of searches in 2021 to more than 100,000 last year.
And last month, Deputy FBI Director Paul Abbate announced a new “three strike” FBI policy that calls for analysts to be disciplined, or even fired, after three incidents in which they misused the intelligence program.
Those new guidelines appear to be working, Contreras said, and the FBI complies with the rules more than 98% of the time.
The newly revealed queries on lawmakers and a state judge, however, took place in June and October 2022 – after many of the FBI reforms were implemented.
Other issues Contreras identified in his opinion included a May 2022 query for a US academic in which analysts failed to obtain pre-approvals required under the FBI’s new policies as well as instances in which non-US persons were labeled as citizens, mistakenly giving those people the extra protections of US citizen status.
The development comes as the bureau continues to lobby for Section 702’s reauthorization on Capitol Hill, with Wray on Friday sending letters to congressional leaders citing cases in which the use of the law helped the FBI disrupt foreign threats.
This story has been updated with additional reporting.