Government report shows steep decline in FBI’s ‘backdoor searches’ on Americans

The Biden administration has a new argument in its uphill battle to sell Congress on renewing a controversial electronic surveillance statute: it can rein in abuses of the program itself.

The number of times FBI personnel sought information on Americans within a repository of data collected under Section 702 of the Foreign Intelligence Surveillance Act fell more than 95 percent in 2022 from 2021, according to a much anticipated transparency report on U.S. spying released Friday.

The decline follows a series of reforms the FBI instituted in the summer of 2021 to curtail searches of the database for information on Americans who correspond with surveilled foreigners.

At the heart of the battle: Section 702 is a powerful spying program that allows the intelligence community to snoop on the emails and other digital communications of foreigners located abroad. But the FBI does not need a warrant to search communications that have already been collected under the statute — and its growing use, and misuse, of those powers to snoop on Americans in recent years have made lawmakers reticent about reupping the program as is.

Showing restraint: The substantial decline documented within the Office of the Director of National Intelligence’s 2023 Annual Statistical Transparency Report buttresses the administration’s claims that it has managed to rein in FBI searches on Americans, a senior FBI official told reporters ahead of the report’s release.

The report “aptly illustrates how built-in oversight that Congress put in the statute works to … repair trust and transparency,” said the official, who provided the briefing to reporters on condition of anonymity.

The data: The FBI sifted through — or “queried” in intelligence community parlance — the 702 database for details on Americans roughly 120,000 times last year after conducting nearly 3 million such searches in 2021 and 850,000 thousand searches in 2020, the report says.

The bureau conducted those 120,000 searches due to alleged connections to foreign spies and security threats.

The bureau also has the ability to scour through the database for details on purely domestic crimes — another hot-button issue that has surfaced amid the reauthorization debate. But the FBI made only 16 such searches last year and 14 the year prior, according to the report.

Zooming out: The new report is the first to disclose the impact of a series of fixes the intelligence community implemented in 2021 after a secret intelligence court overseeing the program determined in rulings from 2021 and 2020 that the bureau committed “apparent widespread violations of the querying standard.”

The reforms amounted to a series of internal measures to discourage bureau personnel from improperly probing the database, like requiring agents to affirmatively opt-in to 702 searches and setting an upper limit on the number of terms that could be used at a time.

Falling on deaf ears: But the new data doesn't appear to be getting traction with lawmakers who believe the spying program should not be reauthorized absent new safeguards for the federal law enforcement agency.

"While there was a sharp decline in U.S. person queries from December 2021 to November 2022, it is incumbent upon Congress, not the Executive Branch, to codify reforms to FISA Section 702," Reps. Mike Turner (R-Oh.) and Darin LaHood (R-Ill.) said in a statement upon the report's release.

“Today’s report highlights the urgent need for reforms to government surveillance programs in order to protect the rights of law-abiding Americans," added Sen. Ron Wyden (D-Ore.), a longtime privacy advocate, in a statement.