The Foreign Intelligence Surveillance Court (FISC) released an opinion Friday that said a U.S. senator and a state senator were queried under FISA Section 702 in June 2022, and a state judge was queried in October 2022 — and said these examples demonstrate a “failure” to follow FBI policy.
The violation was revealed in the FISC’s 2023 opinion released by the Director of National Intelligence on Friday.
Section 702 of the Foreign Intelligence Surveillance Act (FISA) allows the government to conduct targeted surveillance of non-U.S. citizens located abroad to acquire foreign intelligence information. When U.S. citizens are flagged as part of these investigations, the FBI takes over the process of querying them for possible security reasons.
But the court said the three queries it identified didn’t meet the standard set out under the law.
“Some violations of the querying standard coincided with failure to follow an FBI policy that requires prior Deputy Director approval to use ‘sensitive query terms’ — e.g. identifiers of domestic public officials, domestic political candidates, members of the news media, academics, and religious organizations or persons prominent within them,” the opinion said.
“The following queries did not meet the ‘reasonably likely to retrieve’ standard and also contravened this FBI policy,” it said.
The opinion said that in June 2022, “an analyst conducted four queries of Section 702 information using the last names of a U.S. Senator and a state senator, without further limitation.”
“The analyst had information that a specific foreign intelligence service was targeting those legislators, but NSD determined that the querying standard was not satisfied,” it said.
The opinion also said that on Oct. 25, 2022, “a staff operations specialist ran a query using the social security number of a state judge who had complained to FBI about alleged civil rights violations perpetrated by a municipal chief of police.’”
The identities of the U.S. senator, state senator and state judge are unknown.
The FBI told Fox News, however, that these queries were run for a foreign threat concern, and said both the U.S. senator and state judge queries met the “authorized purpose” requirement. The FBI said the senator query, however, was “not reasonably tailored to the query standard and did not receive pre-approval per our policy for sensitive queries.”
“The state judge was not justified and did not obtain pre-approval,” the FBI said.
The opinion said that despite the “reported errors,” there “is reason to believe that the FBI has been doing a better job in applying the querying standard.”
“Large-scale, suspicionless queries of Section 702 information contributed in 2018 to a finding of deficiency in the FBI’s querying and minimization procedures and remained a concern at the time of the last renewal in April 2022,” the opinion said. “Since then, the government has not reported violations of comparable magnitude.”
The opinion also highlights how FBI reforms have contributed to improvements, saying there were ”further indications that the measures are having the desired effect.”
The FISC said FBI’s compliance rate with the querying standard is over 98%, after the implementation of reforms.
The FISC said it “anticipated that the new default settings ‘should eliminate non-compliance stemming from inadvertent querying’ of such information.”
The Court also “noted ‘preliminary indications’ that such changes were ‘resulting in substantial reductions in the number of U.S.-person queries.'”
In a statement responding to the FISC’s opinion, FBI Director Christopher Wray said the findings confirm “the significant improvement in the FBI’s Section 702 querying compliance since the implementation of our substantial reforms.”
“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,” Wray said. “Compliance is an ongoing endeavor, and we recently announced new additional accountability measures.”
Wray added: “We will continue to focus on using our Section 702 authorities to protect American lives and keeping our Homeland safe, while safeguarding civil rights and liberties.”
The FBI has faced scrutiny for the misuse of Section 702, and Wray has said the bureau has taken steps to reform the system.
The Office of the Director of National Intelligence said there was a “significant decline” in the total number of queries the FBI made into U.S. citizens between 2021 and 2022 under Section 702, due to the changes the bureau made to its “systems, processes, and training relating to U.S. persons queries.”
In the year ending November 2022, the FBI conducted a total of about 204,000 queries, a 94% drop from the previous year’s reporting period when it conducted nearly 3.4 million.
But according to the FISC’s 2022 opinion, the FBI improperly used warrantless search powers against U.S. citizens more than 278,000 times in the year ending November 2021. U.S. citizens covered in that improper effort included people involved in the Capitol riot on Jan. 6, 2021; George Floyd protesters during the summer of 2020; and donors to a failed congressional candidate, the filing said.
FISA Section 702 is set to sunset on Dec. 31, and lawmakers on both sides of the aisle are proposing reforms in order to reauthorize the section, with more congressional oversight.