Controversial FISA program set to expire in December
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FIRST ON FOX – The President's Intelligence Advisory Board (PIAB) unanimously recommended renewing FISA Section 702 – a contentious national security authority allowing warrantless surveillance of non-American citizens outside the U.S. – but it raised an alarming history of FBI search violations, including improper queries on Americans, as a significant obstacle to public trust and congressional approval. The program is set to expire in December.
In an unsparing critique of compliance shortfalls, the PIAB recommended 13 reforms primarily geared toward resolving the FBI's damning history of abuses, which it attributed to the agency's "pervasive lack of understanding regarding query standards… an abundance of complacency… and a lack of urgency to comply."
Officials told Fox News that President Biden authorized the release of the PIAB's analysis and findings, which acknowledge widespread bipartisan skepticism about the program’s merits, as well as challenges in conveying the grave consequences of its expiration to lawmakers.
Fox News has learned nearly 60% of articles in the president's daily intelligence brief have stemmed from Section 702 information. The material is said to inform every substantial national security decision by the U.S. government.
"This analysis warns quite starkly that failure to reauthorize Section 702 would be one of the worst intelligence failures of our time," one U.S. official said, "except this intelligence failure would be a known goal. We'd basically be shooting ourselves in the face and handing a huge victory to China, Russia, terrorists, and fentanyl smugglers."
The program, which is designed to filter out communications of U.S. persons, spies on foreign sources through backdoors in telecommunications networks and other electronic communications companies. However, it has drawn scrutiny for sweeping up communications from Americans in contact with foreign targets, referred to as "incidental collection."
For the past three years, FBI searches of U.S. persons within the database made up one-quarter to one-third of its overall queries – except for 2021. (iStock)
For the past three years, the FBI's searches of U.S. persons within the database made up between one-quarter to one-third of its overall queries – except for 2021. That year, a series of batch queries – amounting to 1.9 million U.S. person searches – accounted for more than half of the queries conducted by the FBI. The assessment stated that the high volume of 2021 searches was conducted to identify U.S. victims of a cybersecurity breach.
The intelligence community has defended the query and review of this lawfully-collected data to rapidly determine whether Americans are a potential victim or partner in nefarious foreign activity. Section 702 cannot be used to target collections on U.S. person communications.
The partially redacted report reveals several intelligence successes stemming from Section 702 information, including thwarting a planned 2009 suicide bombing in the New York City subway and averting plans for a vehicle bombing at a Christmas tree lighting in Portland, Oregon, the following year. It further concludes that Section 702 was essential to preventing cases of undisclosed cyber-attacks against critical U.S. infrastructure, locating prominent international terrorists, identifying threats to U.S. troops, and enabling the seizure of fentanyl and fentanyl production materials.
However, the PIAB analysis also highlights a series of compliance mistakes, a lack of strong oversight, and inappropriate use from by the FBI. It deems the FBI’s reform efforts insufficient to ensure compliance and earn public trust.
The partially-redacted report concludes that Section 702 was essential to preventing cases of undisclosed cyberattacks against U.S. infrastructure, locating international terrorists, identifying threats to U.S. troops, and enabling the seizure of fentanyl and fentanyl production materials. (US Navy/AFP via Getty Images)
While the board found no evidence of willful misuse of the FBI for political purposes – noting that the Department of Justice has identified only three incidents of intentional misconduct among millions of FBI queries – it references a damning secret court order written last year and released by the Foreign Intelligence Surveillance Court in May.
The order details thousands of FBI search violations, including probes connected to the Jan. 6, 2021, breach of the U.S. Capitol, riots following the murder of George Floyd in 2020 and approximately 19,000 improper probes of donors to a congressional campaign.
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One FBI analyst, according to the document, conducted three batch searches amounting to more than 23,000 separate queries to probe for foreign influence within a group believed involved in the Jan. 6 Capitol breach. Although the search returns were not reviewed, the court deemed that there was "no specific factual basis to believe the queries were reasonably likely to retrieve foreign intelligence information or evidence of crime."
Separately, more than a dozen searches purportedly to uncover foreign ties among individuals suspected of involvement on Jan. 6 were also deemed improper because the analysts could not recall why they queried raw FISA information.
Many of the violations predated reforms implemented by the FBI in the spring of 2021, but the court conveyed a cavalier attitude by the FBI – sometimes at the management level – defending the misuse as proper. In some instances, the FBI explained that they were determining whether the individuals had foreign ties; in others, the FBI viewed the situation in general as a threat to national security.
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One such example details a pattern of violations by the FBI between 2016-2020, when the agency regularly queried police homicide reports including victims, next-of-kin, witnesses, and suspects, without reasonable basis. "The FBI, however, maintained that querying FISA information using identifiers of the victims – simply because they were homicide victims – was reasonably likely to retrieve evidence of a crime," the opinion states.
The President’s Intelligence Advisory Board seeks to remedy public distrust via its recommendations, the most significant of which would direct the attorney general to remove the FBI’s authority to conduct queries unrelated to national security. (Demetrius Freeman/The Washington Post via Getty Images)
The PIAB is now seeking to remedy public distrust via its recommendations, the most significant of which would direct the Attorney General to remove the FBI’s authority to conduct queries unrelated to national security.
Other recommendations include streamlining standards across all four intelligence agencies using Section 702 to include a two-person approval for checks pertaining to U.S. persons.
Notably, the Board considered – but did not recommend – requiring probable cause for inquires on U.S. persons. The basis for that decision cites obstacles to meeting the legal threshold before discerning whether the subjects of the searches are victims being targeted by a foreign actor, or if they are participating in the crime. One partially-redacted example details an incident involving foreign state cyber hackers, explaining the FBI’s immediate need to query that data to mitigate the hack.
"A warrant, or any other court order, required for every U.S. person query conducted would undoubtedly slow down FBI and the intelligence agencies’ ability to do their jobs. The FISC is also not resourced to process the volume of warrants that would be required," the report states.
The PIAB admits that public trust has been eroded by the government’s inability to estimate the scope of incidental collection on U.S. persons, in part because it would require a manual review of material which is not authorized. Combing through it, if only to generate that estimate, could constitute a violation of privacy, they said. However, the writers point to legal precedent upholding the Constitutionality of Section 702 surveillance, which targets foreign actors who do not have Fourth Amendment protections.
The FBI told Fox NEws that the PIAB report "highlights how crucial Section 702 of the Foreign Intelligence Surveillance Act is to the nation’s security, including to the FBI’s efforts to protect Americans from foreign threats, and recognizes that the reforms put in place by the FBI have yielded substantial compliance improvements."
"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 said. "We look forward to engaging with Congress on the recommendations in the PIAB report, and appreciate the Board’s professionalism, expertise, and judgment in conducting this important assessment."
The PIAB admits that public trust has been eroded by the government's inability to estimate the scope of incidental collection on U.S. persons, in part because it would require a manual review of material which is not authorized. (Brooks Kraft/Corbis/Corbis via Getty Images)
Officials who discussed the material on background with Fox News could not estimate how much improper incidental collection would be mitigated by the proposed changes, noting that the aim is not to minimize the amount of data collected, but to curtail the misuse of it. Officials also said the Board did not recommend limiting the number of people who can access the database, but they believe strengthening benchmarks for its use and improving compliance may have the same effect.
"We do think that there are ways legislatively to bolster confidence and address the source of the problems," one official told Fox News. "Attorney approval for batch queries, Deputy Director approval for sensitive queries. The fact that you lose access to it if you don’t get the requisite training, or if you have compliance errors."
The PIAB also hopes the recommended creation of a new counternarcotics certification before the FISA court will be seen as an important cause in the upcoming Congressional fight.
"Given the enormous threat that the American people face from drug cartels, who are smuggling fentanyl into the United States… the Board found it important for there to be an explicit court-established certification to combat synthetic opioids," one U.S. official said.
Fox News' Brooke Singman contributed to this report.
Jacqui Heinrich currently serves as a White House correspondent for FOX News Channel (FNC). She joined the network in September 2018 and is based out of Washington D.C.
