FBI Director: FISA Section 702 warrant requirement a 'de facto ban'
- Reference: 1700056807
- News link: https://www.theregister.co.uk/2023/11/15/fbi_director_fisa_section_702/
- Source link:
This controversial amendment to the [1]Foreign Intelligence Surveillance Act will expire at the end of December unless Congress reauthorizes it. As the deadline draws near, and reform looms, the FBI and other law enforcement agencies are pulling out all the stops to convince lawmakers to greenlight Section 702 without making any changes to the spying tool — and especially without any warrant requirements.
Section 702 allows the Feds to warrantlessly spy on communications belonging to foreigners outside of the United States in the name of preventing crime and terrorists attacks.
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However it also scoops up phone calls, texts, and emails of US persons — if the foreigner is communicating with or about these US persons — and all of this info is stored in massive databases the FBI, CIA and NSA can search without a warrant.
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[5]Millions of [6]abuses of this spying power do occur, and sometimes foreigners are targeted as a pretext for snooping on the Americans or permanent residents with whom they are communicating.
Last week a bipartisan group of senators and representatives introduced a [7]massive bill called the Government Surveillance Reform Act that would renew Section 702 for four more years — but with new limits to government surveillance including warrant requirements for surveilling US persons' communications, location and vehicle data, web browsing history, and search records.
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Per usual, the bill allows some exceptions to the warrant requirement. These include defensive cyber security purposes or other emergency situations – such as locating and rescuing hostages overseas – that pose an "imminent threat of death or serious bodily harm."
In other words: if law enforcement doesn't have sufficient time to complete warrant paperwork and get a judge to sign off on one in advance, it's business as usual.
But this isn't good enough for the FBI or the [9]White House , which last week called the warrant requirement a "red line."
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During today's hearing, Wray [11]doubled down on his usual Section 702 rhetoric. In prepared remarks, he told Representatives that "loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks."
Specifically, Wray's concerned about the warrant requirement for US person queries.
"A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have," Wray said.
[12]Uncle Sam snooping on US folks? Not without a warrant, lawmakers agree
[13]FBI boss: Congress must renew Section 702 spy powers – that's how we get nearly all our cyber intel
[14]FBI abused spy law but only like 280,000 times in a year
[15]Feds rethink warrantless search stats and – oh look, a huge drop in numbers
He did address the FBI's earlier abuses of Section 702 to spy on protesters, campaign donors, and even [16]elected officials .
"To be sure, no one more deeply shares Members' concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do," Wray said.
The FBI "responded rigorously" to these violations, he added, and that already "dramatically" reduced the 702 searches on US persons, he added.
"Moreover, as we publicly announced in June, the FBI is implementing further measures both to keep improving our compliance and to hold our personnel accountable for misuse of Section 702 and other FISA provisions, including through an escalating scheme for employee accountability, including discipline and culminating in possible dismissal." ®
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[1] https://bja.ojp.gov/program/it/privacy-civil-liberties/authorities/statutes/1286
[2] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_security/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=2&c=2ZVT5NtaGJxtK7n5JmbOKegAAAJU&t=ct%3Dns%26unitnum%3D2%26raptor%3Dcondor%26pos%3Dtop%26test%3D0
[3] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_security/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZVT5NtaGJxtK7n5JmbOKegAAAJU&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[4] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_security/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZVT5NtaGJxtK7n5JmbOKegAAAJU&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[5] https://www.theregister.com/2023/05/02/fbi_section_702_searches_2022/
[6] https://www.theregister.com/2023/05/22/fbi_fisa_abuse/
[7] https://www.theregister.com/2023/11/08/section_702_reform_legislation/
[8] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_security/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=4&c=44ZVT5NtaGJxtK7n5JmbOKegAAAJU&t=ct%3Dns%26unitnum%3D4%26raptor%3Dfalcon%26pos%3Dmid%26test%3D0
[9] https://www.theregister.com/2023/07/31/biden_section_702_intelligence/
[10] https://pubads.g.doubleclick.net/gampad/jump?co=1&iu=/6978/reg_security/front&sz=300x50%7C300x100%7C300x250%7C300x251%7C300x252%7C300x600%7C300x601&tile=3&c=33ZVT5NtaGJxtK7n5JmbOKegAAAJU&t=ct%3Dns%26unitnum%3D3%26raptor%3Deagle%26pos%3Dmid%26test%3D0
[11] https://www.theregister.com/2023/07/28/fbi_section_702/
[12] https://www.theregister.com/2023/11/08/section_702_reform_legislation/
[13] https://www.theregister.com/2023/07/28/fbi_section_702/
[14] https://www.theregister.com/2023/05/22/fbi_fisa_abuse/
[15] https://www.theregister.com/2023/05/02/fbi_section_702_searches_2022/
[16] https://www.theregister.com/2023/07/22/us_senator_caught_in_section_702/
[17] https://whitepapers.theregister.com/
Agreed, it is pretty strange that he says he has deep concerns about compliance violations and at the same time argues they need to be able to query data about US citizens without having enough on them to get a warrant. As if that is not exactly the kind of violation that all the discussion is about.
"If we had to ask for permission we wouldn't be allowed!"
Terrorists and Pedophiles and Violent Criminals (Oh My!)
Cue the standard fearmongering that these powers are all that stand between us and a lawless hellscape. Just think of the children.
My prediction is the government will continue to give itself a free pass on the [1]fourth amendment search and seizure requirements, and the courts will continue to pretend it is OK. For our own good of course. And for the children.
[1] https://constitution.congress.gov/constitution/amendment-4/
" a de facto ban, because query applications either would not meet the legal standard to win court approval [...] "
A.k.a. legally unjustifiable query applications would be blocked. How AWFUL!!!
US law enforcement, from the very top to pretty much state and local, is broken. Not helped by some very strange laws as well as qualified immunity.
LEO so often confuse two very different things: their own convenience vs privacy of citizens.
He says that getting a warrant would be too hard and slow. But that's exactly what the 4th Amendment is for!
They make the same argument against e2e encryption: that they wouldn't be able to mass-surveil
and then query at their convenience, without getting out of their comfortable chair. But of course, e2e is still
subject to surveillance - just at the endpoints, not conveniently in between.
Justice should be clean and accurate, not sloppy. Even if sloppy is easier and cheaper.
"A warrant requirement would amount to a de facto ban"
I can't imagine a clearer admission of current wrongdoing.