White House recommends the FBI limit its usage of spy database

Assistant Attorney General Matt Olsen testifies during a June 13 hearing with the US Senate Judiciary Oversight Committee about Section 702, which authorises foreign intelligence collection [File: Jacquelyn Martin/AP Photo]

Officials advised limiting Section 702 searches to national security threats, amid bipartisan scrutiny of the database.

The Federal Bureau of Investigation (FBI) should stop using a United States spy database of foreigners’ emails and other communications for investigating crimes that are not related to national security, a group of White House intelligence advisers recommended in a report released Monday.

The President’s Intelligence Advisory Board’s findings come as the White House pushes Congress to renew Section 702 of the Foreign Intelligence Surveillance Act before its expiration at the end of this year. US intelligence officials say Section 702 enables investigations of Chinese and Russian espionage, potential “terrorist” plots and other threats.

But spy agencies also end up capturing the communications of US citizens and businesses, and a series of intelligence mistakes at the FBI has fanned bipartisan criticism of the bureau that has shaped the debate over renewing the law. Some lawmakers in both parties and civil liberties groups have called for stronger curbs on how the FBI uses foreign surveillance to search for Americans’ data.

The FBI seal is pictured in Omaha, Neb., Aug. 10, 2022. It features the words "Department of Justice" and "Federal Bureau of Investigation", with a pattern of stars in a circle and a banner in the centre.
The FBI has been the subject of criticism for using the Section 702 database to research US officials and protesters in the 2021 US Capitol riot and 2020 racial justice marches [File: Charlie Neibergall/AP Photo]

While the White House did not commit to accepting the recommended changes, administration officials on Monday praised the board’s work and again called on Congress to reauthorise the surveillance programme.

The board argues in its report that Section 702 is critical to US national security and suggests that allowing the programme to lapse would be an “intelligence failure” and a step backward from changes made after the attacks on September 11, 2001.

The board says the FBI made “inappropriate use” at times of Section 702 information. Those include queries for a US senator and state senator’s names without properly limiting the search, looking for someone believed to have been at the US Capitol riot on January 6, 2021, and doing large queries of names of protesters following the 2020 death of George Floyd.

“Unfortunately, complacency, a lack of proper procedures, and the sheer volume of Section 702 activity led to FBI’s inappropriate use of Section 702 authorities, specifically U.S. person queries,” the board said in its report. “U.S. person queries” generally mean searches for US citizens and businesses.

The board recommends the FBI no longer search the data when it is seeking evidence of a crime not related to national security. Currently, the FBI conducts fewer than two dozen such searches a year, a senior administration official told reporters Monday. The official spoke on condition of anonymity under ground rules set by the White House.

The White House has not decided whether it will accept the recommendation but is studying the board’s work and report, the official said.

Sen. Jon Ossoff, D-Ga., questions Attorney General Merrick Garland during a Senate Judiciary Committee hearing examining the Department of Justice, at the Capitol in Washington, Wednesday, March 1, 2023.
Senator Jon Ossoff has signalled he would support limiting Section 702 intelligence searches [File: Jacquelyn Martin/AP Photo]

The board’s report largely lines up with the White House’s positions on other changes being debated in Congress. The board opposed requiring the FBI to obtain a warrant before it searches Section 702 data, saying that change would be impractical.

It also says the FBI needs to maintain access to foreign spy collection because, unlike other intelligence agencies, it has law enforcement authorities inside the US and can warn Americans that they are being targeted by foreign spies or criminals.

Already, both Republicans and Democrats have called for broader changes affecting the FBI, including a handful of lawmakers in both parties who want to require warrants for any search.

Democratic Senator Jon Ossoff of Georgia sharply questioned Assistant Attorney General Matt Olsen in June about how it searches Section 702 data and signalled he would push for new protections.

“I don’t think you’ve effectively made the case that there shouldn’t be a warrant requirement, whether or not it is constitutionally required, for a US person search that is crime only,” he said.

Many in the Republican Party, meanwhile, are furious about the FBI’s investigations of former President Donald Trump and mistakes found by the Justice Department inspector general and other reviewers.

In a statement, the FBI said the report highlighted “how crucial” foreign intelligence was to the bureau’s mission.

“We agree that Section 702 should be reauthorized in a manner that does not diminish its effectiveness, as well as reassures the public of its importance and our ability to adhere rigorously to all relevant rules,” the bureau’s statement said.



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