FBI mistakenly searched for senator in Section 702 spy data, court says

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WASHINGTON — FBI employees mistakenly searched foreign surveillance data for the last names of a US senator and a state senator, according to a court opinion released Friday. The disclosure could further complicate the Biden administration’s efforts to revamp a major spy program that already faces bipartisan opposition in Congress.

Another FBI employee improperly consulted the Social Security number of a state judge who alleged civil rights violations by a municipal police chief, according to the opinion of the chief judge of the Foreign Intelligence Surveillance Court.

News of the latest violations comes as the Biden administration faces an uphill battle to persuade Congress to renew Section 702 of the Foreign Intelligence Surveillance Act, which allows spy agencies to collect swathes of email and other communications.

Already this year, US intelligence officials have revealed that the FBI improperly searched Section 702 databases for information related to the January 6, 2021 riots at the US Capitol and the 2020 protests following the police killing of George Floyd.

US officials say Section 702 enables their top-priority work on China, Russia and threats like terrorism and cybersecurity. But many Democratic and Republican lawmakers say they won’t vote to renew Section 702 when it expires later this year without major changes to how the FBI uses overseas surveillance data to investigate Americans.

Democrats who have long called for new limits on the FBI’s access to surveillance have been joined by growing numbers of Republicans angry about the office’s investigations into former President Donald Trump, as well as errors and omissions made during the investigation of Russian ties to his 2016 campaign.

FBI Director Christopher Wray said in a statement that reforms at the office had led to a «significant improvement» and fewer incidents of not following intelligence rules. He later sent a letter to congressional leaders defending the importance of the Section 702 program.

“We take our role in protecting national security seriously, and we take just as seriously our responsibility to be good stewards of our Section 702 authorities,” Wray said in his statement. “We will continue to focus on using our Section 702 authorities to protect American lives and keep our homeland safe, while safeguarding civil rights and liberties.”

Patrick Toomey, deputy director of the ACLU’s Homeland Security Project, said in a statement that the latest errors show that «it is time for Congress to intervene.»

“As Congress debates the reauthorization of Section 702, these opinions show why that can’t happen without fundamental reforms,” he said.

The surveillance court opinion released Friday did not reveal the names, statuses or party affiliations of the people whose names were sought. He said the searches of the state senator and the US senator occurred in June 2022. According to the court’s opinion, the analyst who conducted the searches had information that a foreign spy service was targeting the lawmakers. But the Justice Department’s homeland security division reviewed the searches and found they did not meet FBI standards for limiting the amount of information retrieved, according to the opinion.

The state judge’s Social Security number was sought in October. It was later determined that the analyst did not have sufficient evidence to conduct the search and did not authorize the search with his superiors as is required in politically sensitive searches, according to a senior FBI official who told reporters Friday on condition of anonymity under ground rules set forth by the agency.

The unnamed US senator has been notified of the search, but the state senator and state judge have not, the FBI official said.

The FBI obtains a section of overseas surveillance data collected primarily by the National Security Agency, US officials said. Unlike the NSA and CIA, which pursue intelligence targets abroad, the FBI is responsible for investigating threats to the US, such as cyber attacks or attempts to influence or interfere in US elections.

There are strict rules governing when analysts can search for US citizens or companies in surveillance data. Facing pressure from the surveillance court and Congress, the FBI in recent years has changed its search tools, increased training for analysts working with foreign data and required new approvals from superiors for larger searches or sensitive searches such as the names of public officials.

Last month, the FBI also announced new disciplinary measures. Any employee accused of negligence would immediately lose access to surveillance data until he receives training and meets with an attorney from the office. The actions revealed Friday predate the new disciplinary policy.

Judge Rudolph Contreras’ opinion, which was completed in April 2023 and published Friday with redactions, says that «there is reason to believe that the FBI has been doing a better job of applying the inquiry standard.» Of nearly 80,000 audited searches over a 16-month period ending in December 2022, 1.8% were found not to meet internal standards, the court said.

The total number of searches by Americans also appears to have decreased. During a one-year period ending in March, the FBI conducted about 180,000 searches of US citizens and other US entities, the court said.

That’s well below the roughly 2 million searches reported between December 2020 and February 2021 alone, something Contreras wrote «should indicate less intrusion into the private communications of American individuals.»

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