Congress' Anger at FBI Shapes Surveillance Program's Future

Both parties in Congress are angry at the FBI, which is a major hurdle for intelligence agencies trying to keep their powers to collect foreign communications.

WASHINGTON, D.C. (AP) - The growing anger of both political parties towards the FBI has created a major obstacle for U.S. Intelligence agencies that are fighting to maintain their vast power to collect foreign communications which often includes the phone calls and email messages of Americans.

The key lawmakers have said they will not vote to renew programs under Section 702 Foreign Intelligence Surveillance Act, which expires at the end this year, without making major changes aimed at the FBI. The FBI's Section 702 searches for U.S. Citizens have been criticized by many, along with other mistakes made in intelligence investigations.

Since the last renewal of the law in 2018, the following revelations have been made: the bureau misled judges of the surveillance courts in its attempt to wiretap an aide in the 2016 presidential campaign of former President Donald Trump. Agents also failed to follow the guidelines when searching Section 702 database for names of a member of the House Intelligence Committee and members of a local party.

In written opinions, two successive chief judges of U.S. primary surveillance court have criticized the Bureau. One said that the frequent errors in the Bureau's investigation into Russian election interference "calls into doubt whether the information contained in other FBI Applications is reliable."

This debate is important to U.S. officials in the intelligence community, who believe that Section 702 is their most powerful tool for stopping terrorists, enemy spies and cyberattacks. The intelligence community claims that 59% of items included in the daily briefings given to President Joe Biden were information the National Security Agency gathered under Section 702.

The classified Pentagon documents that have been leaked online over the past few weeks show how heavily the U.S. relies upon electronic snooping. Hundreds of items, both on allies and enemies alike, are sourced from what is known as "signals intelligence."

In a press release, Rep. Mike Turner (R-Ohio), the Ohio Republican and chairman of the House Intelligence Committee said that Section 702 had kept American citizens safe, as well as our U.S. military personnel abroad, out of harm's way. "However changes are needed to stop the FBI from misusing and abusing this important national security tool."

In March, Reps. Pramila Jayapal, D. Washington, and Warren Davidson R. Ohio, released a joint press release saying that the FBI searched for Americans 'at alarming levels', and called for a revamp of the program.

The FBI claims it uses foreign communications in its investigations into national security and controls tightly how agents can access American data. This week, FBI officials released a list of search criteria that agents should follow. In December 2021, they will also be adding new training requirements for their agents and overhauling their computer system.

The FBI now requires that searches likely to return 100 or more hits be cleared with an FBI attorney. In addition, the deputy director of the FBI must personally approve 'certain sensitive queries', including searches on U.S. government officials.

FBI Director Chris Wray told Congress that he had made mistakes like any other major institution. To me, a leader isn't defined by whether they make mistakes or not. It's about whether or not they learn from them. I believe we have.

Rep. Jim Himes, Connecticut's top Democrat, who is also the chair of the House Intelligence Committee said he was in favor of the FBI changes and wanted to see them included in a revised surveillance law.

Himes claimed that some Republican critics are motivated by investigations into Trump, such as the FBI search of Trump's Florida home last year.

In an interview, he stated that 'I believe anger towards the FBI has now become an article for faith within the Republican Conference'.

Section 702 allows the U.S. to collect foreign communications without warrants -- with the participation of American telecom firms -- in order to create databases which analysts can use for intelligence purposes. They can also collect data on foreigners living outside of the United States.

The agencies cannot collect emails and phone numbers of U.S. citizens by pursuing a foreigner on U.S. territory.

Civil liberties activists have long maintained that the program could violate the Fourth Amendment, as it would allow the FBI to access vast amounts of communications from Americans without a warrant. The FBI revealed that it performed up to 3.4 million searches on Section 702 data in 2021, a number that dropped dramatically last year from approximately 200,000.

Patrick Toomey said that Section 702 had become "a domestic spying instrument for the FBI."

Toomey stated in an email that 'the rules are extraordinarily permissive and yet FBI agents continue to regularly violate them'. "Congress must require a search warrant to protect Americans. The FBI cannot police itself."

Some legislators also support the requirement that the FBI obtain warrants for each search of Section 702 information. National security officials are opposed to a requirement for a warrant, claiming that it would overwhelm courts with new cases.

According to several people familiar with the plans, who spoke under condition of anonymity in order to discuss their internal deliberations, the majority Republicans on House Intelligence Committee instead want new criminal penalties for agents who provide false information willfully to a surveillance tribunal.

Rep. Chris Stewart (R-Utah) said that this proposal was based on the perception that Wray and the FBI would not punish agents who abuse authority and Republicans' concern that Wray and the FBI wouldn't answer questions regarding disciplinary measures taken.

He said that societies can't survive if they don't trust their own police, intelligence agencies. We must implement reforms in order to regain some trust.

The FBI declined to reveal how many agents were disciplined or dismissed for violations. However, the official said that the Bureau had determined that deliberate misconduct on behalf of agents is rare. Under ground rules established by the FBI, this official spoke under condition of anonymity.

Both parties have discussed extending the terms of the judges of the Foreign Intelligence Surveillance Court. This court holds classified proceedings, approves wiretaps and the Section 702 rules of the Intelligence Community each year.

The people also said that they want the court transcribe every hearing for appeals, and expand the use outside advocates - known as amicus curiee - who can challenge FBI requests in court.

The lawmakers may ask for a short delay into the next year to complete a long-term package of changes. The future of the program is currently uncertain.

Rep. Jason Crow is a Colorado Democrat and also sits on this committee. He said that while he supported changes to the laws, it was important for Congress to maintain it.

He said, 'If we lost this program, we would be blinded overnight in many critical areas'.