A United States congressman who’s leading an effort to investigate some of the intelligence community’s most controversial surveillance practices announced during a public hearing today that he’d been the subject of an unlawful search by an FBI analyst with access to classified intercepts obtained by the US National Security Agency.
Darin LaHood, a member of the House Intelligence Committee, pointed to a government report declassified in December that details failures by the FBI to comply with rules for accessing intelligence gathered under the Foreign Intelligence Surveillance Act (FISA). The report, which describes an audit of FBI activities conducted jointly by the Justice Department’s national security division and the Office of the Director of National Intelligence, exposed misuse of raw classified intelligence in the first half of 2020.
As first reported by WIRED last month, the report described how FBI personnel had unlawfully searched through FISA data on a “large number” of occasions, including one incident involving an analyst repeatedly querying a US congressman’s name in violation of compliance procedures.
“I have had the opportunity to review the classified summary of this violation,” LaHood said during today’s hearing, “and it is my opinion that the member of Congress that was wrongfully queried multiple times solely by his name was, in fact, me.”
LaHood, a Republican of Illinois, went on to say he believed the inappropriate searches were egregious and a violation that would not only erode faith in FISA but be viewed by Congress “as a threat to the separation of powers.” The characterization of the FBI’s actions in the report, he said, is “indicative of the culture that the FBI has come to expect and even tolerate. It is also indicative of the FBI’s continued failure to appreciate how the misuse of this authority is seen on Capitol Hill.”
The incidents, which Justice Department officials ultimately attributed to FBI employees “misunderstanding” the rules, come at a precarious moment for the bureau. Congress is deliberating whether to reauthorize a key surveillance statute—known as Section 702—from which the nation’s intelligence apparatus derives much of its power to intercept electronic communications overseas. While this surveillance ostensibly targets only foreigners unprotected by the Fourth Amendment, it also frequently sweeps up communications with Americans in what the government calls “incidental” collection. The FBI routinely accesses this intelligence to further its own domestic criminal investigations, which has long drawn the ire of privacy advocates who regard it as an end-run around the constitution’s privacy protections. The practice has come to be known as a “backdoor” search.
FBI director Christopher Wray responded to LaHood, saying “all sorts of reforms” had been implemented in the wake of the audit in question. “There have been compliances that have to be addressed,” he said. “What’s important to note about that is that all of the reports to date that have been shared with the public and, I think, with the Congress about 702 compliance issues predate all these reforms.”
A future report coming in May will show, Wray promised, a “93 percent decrease year over year—from ’21 to ’22—in the number of US person queries made by the FBI.” The drop was not an aberration, he said, but part of an adjustment in the bureau’s behavior. “We are absolutely committed to making sure that we show you, the rest of the members of Congress, and the American people that we’re worthy of these incredibly valuable authorities.”
Jeramie Scott, senior counsel at the Electronic Privacy Information Center and director of the nonprofit’s surveillance oversight project, says LaHood’s admission served as further confirmation that “the FBI’s backdoor searches are ripe for abuse.” He adds that Congress should outlaw the practice and implement comprehensive reforms to “rein in the surveillance state and protect Americans’ privacy and civil liberties.”
Many Republicans, in particular, remain suspicious of the FBI’s power, with some saying Section 702 should expire at the end of the year. The statute’s defenders, meanwhile, consider the authority pivotal to the nation’s defense with regard to both terrorism and cybersecurity threats posed by adversarial nations like China. Many privacy hawks and civil libertarians are focused this year on simply minimizing the FBI’s ability to access intelligence gathered for counterespionage purposes without a warrant. Sources with knowledge of the deliberations tell WIRED that the Biden administration would prefer a clean reauthorization—that is, no changes to the status quo—but add that the odds of that happening are growing increasingly slim.
The FBI is already working with a diminished set of tools, having been stripped during the Trump years of multiple powers once derived from the 9/11-era Patriot Act. These include the ability to obtain “roving” wiretaps that target people instead of particular devices and the power to target Americans suspected of international terrorism ties without formally linking them to a specific organization, known as the Lone Wolf amendment.
While the Republican Party, which now controls the House, historically has held the stronger national security credentials, the reality is that the FBI was in much safer hands with Nancy Pelosi as Speaker of the House and Adam Schiff dictating the House’s intelligence agenda. In 2020, a bipartisan coalition of advocacy groups even accused the pair of covering for the FBI, amid accusations that the bureau was relying on “secret claims of inherent executive power” to engage in surveillance for which they no longer had congressional permission. The Trump era saw a major chasm form between the nation’s spies and members of the populist wing of the Republican Party. After Democrats lost the House in 2022, one of the wing’s leaders, Jim Jordan, took over control of the Judiciary Committee, which has jurisdiction over Section 702.
None of this bodes well for the FBI, the further diminishment of which would not only please civil liberties advocates vying for privacy reform but also Republicans eager to claim a political victory over the so-called deep state.
In an email, LaHood says that as a former prosecutor of terrorism cases, he recognizes the “incredible value” of Section 702, but claims that Americans have “rightfully” lost faith in the FBI. The documented FISA abuses should serve as a wake-up call for the intelligence community, he adds, saying reauthorization of 702 without reforms would be “a non-starter” in the House.
LaHood’s disclosure comes only a day after FBI director Chris Wray announced that the FBI had previously acquired geolocation data belonging to Americans, which he said had been obtained commercially from data brokers, skirting the requirement to obtain a warrant. While ostensibly legal, many privacy lawyers and scholars nevertheless consider such arrangements between the government and data collectors an affront to the Fourth Amendment’s guarantees against unreasonable searches and seizures.
Representative Zoe Lofgren, a Democrat of California, says the revelation underscored an urgent need for Congress to act. “The Constitution is explicit in its requirement that the government must obtain a warrant before conducting a search,” she says. “The failure to do so goes against our Constitution and jeopardizes the civil liberties of Americans.”
