The FBI conducted thousands of queries on digital data collected on U.S. citizens in 2021 and 2022 despite having no warrant and no justification under the FBI’s own rules, according to an internal report released on May 10.
The audit, conducted by the FBI Office of Internal Auditing (OIA), was intended to examine the agency’s compliance with rules for querying data the government routinely collects on U.S. citizens under Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA).
FISA allows the government to collect electronic data, including phone calls, text messages, and emails of foreigners overseas, even if the communications involve a U.S. citizen. U.S. agencies can then search that data in connection with national security investigations.
Under rules approved by the FISA court, any search of that data involving a U.S. citizen must meet three criteria.
It must be for the purpose of retrieving foreign intelligence information or evidence of a crime, reasonably designed to avoid unnecessarily retrieving information not related to the purpose, and justified by a specific factual basis indicating that it’s likely to retrieve foreign intelligence information or evidence of a crime.
FBI Director Christopher Wray testifies at a hearing in front of the Senate Intelligence Committee in Washington on Jan. 29, 2019. (Charlotte Cuthbertson/The Epoch Times)
According to the report, searches of FISA data failed to meet those criteria 4 percent of the time between July 1, 2021, and March 31, 2022. The most common failure was listing insufficient justification for the search.
According to a separate FBI report, the agency conducted more than 204,000 queries of FISA data on U.S. citizens in 2022. Given a 4 percent noncompliance rate, that would indicate that the digital communications of Americans were obtained by the FBI more than 8,000 times with no warrant and without proper justification under rules approved by the FISA Court.
The audit was conducted after FBI Director Christopher Wray implemented procedural changes for FISA queries in 2021 and 2022. The agency had come under fire after the FISA Court found “widespread violations” of the rules. Those violations included searches for the communications of government officials, journalists, political commentators, and a member of Congress.
FISA was created in response to similar unwarranted surveillance of U.S. citizens by the Nixon administration.
The audit shows a marked improvement over an audit of the period from April 1, 2020, to March 31, 2021, which revealed a noncompliance rate of 18 percent.
In 2021, the FBI conducted roughly 3.4 million FISA queries involving U.S. citizens. With an 18 percent noncompliance rate, that indicates that the electronic communications of U.S. citizens were obtained by the FBI in violation of some rule about 612,000 times in that year alone.
Although the number of FISA queries decreased greatly and the FBI’s compliance rate improved, the change wasn’t enough to satisfy some privacy advocates.
“Even if the compliance rate were 100 percent, the government should not be able to access Americans’ communications without a warrant,” Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, wrote on Twitter.
“But with a baseline of 8,000 violations per year, there can be no question that a warrant is needed to protect Americans’ fundamental rights.”
Based on the audit results, the OIA recommended further changes in the procedures for querying FISA data. Those include improving the FISA query compliance monitoring program, ensuring that all users complete required training before gaining access to raw FISA data, and making system changes to notify users when they make mistakes when inputting data.
The FBI didn’t respond by press time to a request by The Epoch Times for comment.