FBI pleads to keep FISA spy powers despite concerns over growing abuses

Senior intelligence officials sought to shock Congress on Tuesday into renewing controversial spy powers, saying without the “Section 702” ability to scoop up global communications, the CIA and FBI would struggle to stop Iranian assassination attempts, Chinese hackers, Russian crimes in Ukraine, and drug smugglers pouring fentanyl across America’s southern border.

They are fighting an uphill battle after revelations of appalling abuses, including illegally querying communications from Black Lives Matter protesters, crime victims and donors to a U.S. political campaign.

Some 278,000 improper queries involving Americans were run on the data from 2016 to 2020.

That level of abuse has endangered the existence of Section 702, which will expire at the end of this year unless Congress enacts new legislation. Key lawmakers said no extension will be granted unless it is coupled with major reforms and better transparency on who is getting snooped and why.

“You have to, I hope, understand why some of us are skeptical at this point,” Senate Judiciary Committee Chairman Richard J. Durbin, Illinois Democrat, told the intelligence officials at a hearing Tuesday.

Assistant Attorney General Matt Olsen acknowledged the problems — “I don’t defend them,” he said — but he told the committee not to lose sight of what the 702 program does.

He said 702 data has helped disrupt assassination plots, stop kidnappers and allow the FBI to defeat computer ransomware attacks, along with tracking terrorists.

“We must not forget the lessons of 9/11,” he said.

Section 702, part of the Foreign Intelligence Surveillance Act, grew out of the 2001 terrorist attacks, when the Bush administration concluded that it needed to do more to track foreigners’ communications.

It started the secret program to scoop up communications flowing across U.S. telecommunications companies’ networks.

Congress belatedly moved to authorize the program formally in 2008 and renewed that authorization most recently in 2017.

As envisioned, Section 702 scoops the data and allows U.S. agencies to store it. The CIA, FBI or National Security Agency can query the data as they investigate foreign people outside the U.S.

The agencies are not supposed to target U.S. citizens, but since U.S. communications are also scooped up, queries can sometimes return data from Americans without a warrant.

Intelligence officials said a warrant comes into the picture once a U.S. person is suspected.

That wasn’t much of a reassurance for some senators, who pointed to the recently revealed abuses at the FBI, combined with an already palpable sense of distrust with the bureau.

Sen. Mike Lee, Utah Republican, said he has been raising issues of FISA abuse for years and each time is told that the FBI has “good people” and strong procedures in place.

Yet abuses keep piling up.

“First, they tell us there are no problems, then they tell us, ‘We will fix them because we’ve got good people and new policies. This time it’s going to be different.’ Only later, we find out the FBI conducted more and more illegal searches in violation of Americans’ constitutional rights,” he said. “This is what I find so insufferable. This is what I find so incredibly insulting.”

Mr. Olsen, on cue, delivered another promise.

“I share the frustration that you express with the lack of compliance that we’ve seen in past years from the FBI,” he said. “What I can tell you is those compliance problems predate some of the very significant changes that the FBI has put in place.”

He said the cost of losing the tool outweighs those worries about abuse.

“The tool itself is so incredible to our national security that I believe its essential effectiveness must be preserved,” he said.

The NSA said 59% of the president’s daily intelligence briefing can be traced to communications scooped up thanks to Section 702. The CIA said nearly 40% of the articles in the agency’s daily world intelligence review contain data derived from Section 702 collections.

Hoping to hit a nerve with lawmakers whose constituents are howling about record drug overdoses, the officials particularly noted Section 702’s use in targeting cartels that manufacture and smuggle fentanyl, the synthetic opioid at the heart of the overdose epidemic.

“Without 702, we would be missing essential information on the dangerous groups and individuals behind overseas fentanyl production and distribution,” said CIA Deputy Director David Cohen.

He said elimination of the data collection would risk the lives of CIA officers and their contacts, who would use more personal methods to try to acquire the information.

The NSA, the country’s top signals-intelligence agency, said its compliance rate for properly targeted queries of the data is higher than 99%.

The FBI said its compliance rate is at 94%, after the recent changes.

Mr. Olsen said one key change was simple. Previously, when an FBI agent or analyst queried the bureau’s data, it looked at a range of databases at the same time, including the Section 702 data.

After the change, the employee needs to proactively select — and defend — the need to search Section 702 data for it to be part of a search.

It’s not clear why that wasn’t always the standard, but officials said the opt-in change, made in 2021, has had an immediate effect. The number of queries of 702 data involving U.S. citizens dropped by 93%.

Before that change, the FBI ran 278,000 improper queries involving Americans from 2016 to 2020, according to a recently declassified opinion from the Foreign Intelligence Surveillance Court, which has a role in overseeing the program.

Mr. Olsen said the large number of wrong queries had to be contextualized and more than 100,000 of those were attributable to a single bad “batch” query.

He downplayed the number of queries that were solely aimed at Americans with purely a domestic criminal nexus and said there were just 16 of those last year. He said an agent found evidence of child abuse in one case.

“The reason for not requiring a warrant is this is lawfully collected information that is in the FBI’s holdings,” he said, adding that it would be unwise “to simply wall off the FBI” from querying it without a warrant.

The assistant attorney general said the administration is “open to” changes to Section 702 but added that they cannot be big enough to undermine the “effectiveness” of the program.

He said the intelligence community can police itself.

Mr. Olsen said one FBI employee was fired for intentional abuse of Section 702 data, and FBI Deputy Director Paul Abbate announced a new “three strikes” policy on Tuesday that he said will include various warnings and sanctions — including firing — depending on the willfulness of the errors.