FBI analysts conducted improper searches on a U.S. senator and two state officials using a foreign intelligence database, according to a declassified court opinion released Friday, despite wide-ranging procedural and accountability reforms the bureau recently instituted to curb possible misuse.
According to an April 2023 opinion of the Foreign Intelligence Surveillance Court (FISC) released Friday by the Office of the Director of National Intelligence, the errors related to analysts’ failure to properly follow new policies that the FBI put in place for querying data under Section 702 of the Foreign Intelligence Surveillance Act (FISA), a legal provision that allows U.S. intelligence agencies to conduct electronic surveillance and is set to expire at the end of this year.
The opinion, written by Judge Rudolph Contreras of the Foreign Intelligence Surveillance Court – whose rulings are usually issued in secret – otherwise showed that the FBI’s rate of compliance with new standards for searching the database was more than 98%.
“[T]here is reason to believe that the FBI has been doing a better job in applying the querying standard,” it said.
“While a 98% compliance rate shows our reforms have led to substantial improvement, it also means there are still errors,” said a senior FBI official who briefed reporters Friday. “That is why we recently put in place even more reforms, some of which are directly responsive to the findings in the opinion we are releasing today,” the official said.
Neither the senator nor the state officials were named in the opinion. While it is not common practice for the FBI to notify those who have been wrongly queried, the FBI official said the senator had been notified of the incident, while the state officials had not been.
“We did not collect any information on them,” the official added. “What was done was a query was run against our databases to retrieve any information that was already lawfully collected.”
Friday’s release is the latest in the government’s efforts to win over critics in Congress of authorities permitted by Section 702. In May, ODNI also released an opinion that showed FBI officials conducted improper searches of the database during investigations of the Jan. 6, 2021, Capitol riots and arrests in the aftermath of the murder of George Floyd in June of 2020.
FBI Director Chris Wray faced sharp criticism last week about past misuse during a hearing before the House Judiciary Committee, with several Republican members accusing the FBI of abusing its authority.
Wray acknowledged prior missteps in a letter to congressional leaders on Friday while noting the most egregious cases occurred before reforms were introduced.
“We are committed to holding ourselves accountable and we are eager to discuss with Members how these reforms can be enshrined as part of Section 702’s reauthorization,” Wray wrote, according to a copy of the letter obtained by CBS News. “We also welcome discussing with Congress additional reforms and evaluating how these reforms can be implemented without diminishing Section 702’s vital intelligence value.”
“We have been very open with Congress … to explain what we have done in response to the very real and concerning compliance issues that we had in prior years,” the FBI official said, noting “several” members had been invited to FBI headquarters to see the effect of the reforms in practice. “We’ve had some very substantive conversations,” he said.
Friday’s release also revealed new details about the National Security Agency’s querying practices as well as the vetting process for determining whether non-U.S. individuals who aim to travel or immigrate to the U.S. have connections to international terrorism.
“This is actually quite unique in the overall environment of other intelligence functions in other countries,” said Rebecca “Becky” Richards, chief of ODNI’s civil liberties, privacy and transparency office. “We view this as a duty to ensure people understand what we’re doing and how we’re doing it.”
Patrick Toomey, deputy director of the American Civil Liberties Union’s national security project said Friday’s revelations were “disturbing.”
“The FBI continues to break the rules put in place to protect Americans, running illegal searches on public officials including a U.S. senator, and it’s long past time for Congress to step in,” Toomey said in a statement. “As Congress debates reauthorizing Section 702, these opinions make clear why fundamental reforms are urgently needed.”
