FBI analyst improperly searched surveillance data for U.S. senator's name

An FBI analyst improperly searched a government surveillance database last year using the last name of a U.S. senator, according to a newly declassified court document released on Friday.

The disclosure is included in the Office of the Director of National Intelligence’s release of a 117-page April order by the federal judiciary’s foreign intelligence surveillance court, which typically issues rulings in secret. The surveillance court’s ruling notes more broadly that, despite the improper search in 2022, “there is reason to believe that the FBI has been doing a better job” adhering to its own rules for using warrantless surveillance.

But the reported search for a senator comes as a key moment for the future of the FBI’s surveillance power: There is growing bipartisan support on Capitol Hill for enacting reforms to the authority and the broader law it is housed under. While it was designed to target overseas residents, the program can also sweep in Americans’ communications — and has faced bipartisan scrutiny for doing so.

Congress must decide by the end of the year how and whether to extend the surveillance program. Among the changes lawmakers are now weighing are new limits to how the FBI can search for U.S. persons swept up by the program. The improper search that ODNI disclosed on Friday may further roil that debate.

According to the newly declassified court document, in June 2022, an FBI analyst conducted four searches of information collected under the warrantless surveillance program “using the last names of a U.S. Senator and a state senator.” In both cases, the analyst had information showing that the two lawmakers were being targeted by a foreign intelligence service.

A senior FBI official stressed that “none of these individuals were surveilled” and the FBI “did not collect any information on them” in response to the search. The analyst ran an unapproved search “against our databases to retrieve any information that was already lawfully collected,” the official added.

But the database searches nonetheless violated the FBI’s policy on multiple fronts, according to the court document.

The analyst in question, whom the court did not name, failed to get pre-approval from the deputy director that is required for searches that use “sensitive query terms,” such as the names of public officials or candidates. More broadly, the analyst’s searches did not fully meet the FBI's search standards that it considers when determining if a search is “likely to retrieve foreign intelligence information or evidence of a crime," the court found.

The senior FBI official, during a press call Friday afternoon after the opinion was released, said that while the searches did meet two of the three components the FBI considers — including having a factual basis for believing that it was reasonably likely the search would retrieve such information — it didn’t meet a third component requiring that a search also be “reasonably tailored” to do so without “unnecessarily retrieving” other surveillance-collected data.

The senior FBI official added that if the analyst’s queries had been sent for pre-approval in accordance with the policy, “they would not have been approved.”

The court document does not disclose the identity of the U.S. senator whose name was searched for. Asked if it was a current U.S. senator, the senior FBI official told reporters that the person in question was in office as of June 2022 when the analyst’s search was run. (Seven senators have left Congress since then.)

The FBI did discuss the search with the U.S. senator but did not directly disclose the violation to the state senator, the bureau official said.

In addition, the foreign intelligence surveillance court opinion released on Friday disclosed that the FBI conducted an improper search for a state judge via that person’s social security number in the surveillance database, which took place in October.

It also isn’t the first time the court has disclosed that an FBI analyst improperly searched warrantless surveillance data for a member of Congress.

A footnote in a recently declassified report about the use of surveillance program authority between December 2019 and May 2020 said that an FBI intelligence analyst queried surveillance databases using only the name of a U.S. House member. Rep. Darin LaHood (R-Ill.), who is now leading the House Intelligence Committee’s discussions on reforming the program, subsequently said he believes he is that lawmaker in question.

Since 2021, the FBI and Justice Department have worked to impose new guidelines and internal reforms aimed at preventing improper use of the surveillance tool. For example, the tone of the April order is significantly different from a 2021 surveillance court order also declassified by the ODNI on Friday.

In that 2021 order, the court calls the FBI’s surveillance program problems “substantial and persistent.” It adds that failing to correct those issues would “call into question,” among other things, the ability of the court to find that the FBI’s surveillance procedures are “consistent with statutory and Fourth Amendment requirements."

By comparison, in the April order, the surveillance court noted “recent indications that the FBI is improving its implementation of Section 702 querying requirements.” (Section 702 is the statutory provision of surveillance law that created the program.)

Among the FBI’s reforms noted by the court: requiring additional documentation of search compliance; changing internal search settings; requiring additional approval for “batch” queries, additional mandatory and annual training, and additional review of searches. FBI Director Christopher Wray has also touted the creation of an Office of Internal Audit that he said is focused specifically on warrantless surveillance.

Wray sent a letter separately to Senate Majority Leader Charles Schumer (D-N.Y.) and House Speaker Kevin McCarthy (R-Calif.) on Friday touting the reforms, as well as how the program is used against an array of national security threats, as he made the pitch for reauthorization.

"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. We also welcome discussing with Congress additional reforms and evaluating how these reforms can be implemented without diminishing Section 702's vital intelligence value," Wray wrote in the letter.