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FBI improperly searched for US senator’s last name, court discloses

Revelation could toughen the road ahead for reauthorization of Section 702

The J. Edgar Hoover FBI Building in Washington.
The J. Edgar Hoover FBI Building in Washington. (Tom Williams/CQ Roll Call file photo)

The Federal Bureau of Investigation improperly searched foreign surveillance information last year using the last names of a U.S. senator and a state-level politician, according to a court opinion released Friday.

The revelation could toughen the road ahead for the Biden administration as it seeks reauthorization of a contentious surveillance tool known as Section 702, which expires at the end of the year. Politicians on both sides of the aisle have raised privacy concerns about the program and are leveraging the reauthorization to demand changes.

[FBI director defends surveillance tool at House Judiciary hearing]

The opinion from the Foreign Intelligence Surveillance Court said an FBI analyst in June 2022 conducted searches of Section 702 data using the last names of a U.S. senator and a state senator “without further limitation.” The court didn’t name the legislators.

“The analyst had information that a specific foreign intelligence service was targeting those legislators, but [National Security Division] determined that the querying standard was not satisfied,” Judge Rudolph Contreras wrote in the opinion, which was completed in April but released on Friday. It was declassified on July 16.

Despite reported errors, Contreras wrote that “there is reason to believe that the FBI has been doing a better job in applying the querying standard.”

Also in 2022, a staff operations specialist also ran a query using the Social Security number of “a state judge who ‘had complained to FBI about alleged civil rights violations perpetrated by a municipal chief of police.’”

Section 702 allows the U.S. government to collect the digital communications of foreigners located outside the U.S. But the Foreign Intelligence Surveillance Court has found “persistent and widespread” compliance problems with the FBI’s searches under Section 702.

At a congressional hearing earlier this year, Republican Rep. Darin LaHood of Illinois, a member of the House Intelligence Committee, said his name was wrongfully searched in surveillance information. LaHood has since been tapped to lead a bipartisan working group focusing on Section 702’s reauthorization.

The opinion unveiled Friday marks the latest in what could be a drawn-out battle between the Biden administration and lawmakers over the renewal of Section 702.

FBI Director Christopher Wray defended the surveillance tool during a congressional oversight hearing last week, saying the agency only accesses about 3 percent of the total information collected under Section 702. But those arguments fell flat before Republicans, who zeroed in on how it allows U.S. authorities to run warrantless searches for information on Americans.

Senate Judiciary Committee members have told intelligence officials that Section 702 needs more privacy safeguards for Americans.

Judiciary Chair Richard J. Durbin D-Ill., said the surveillance program doesn’t do enough to protect privacy and civil liberties. At a hearing last month, he said he’ll only support the reauthorization of Section 702 if there are “significant reforms.” He also said the changes must include safeguards to prevent future abuses and ensure effective oversight from the courts and Congress.

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