A top FBI official is actively encouraging agents to conduct warrantless surveillance of Americans using a controversial spy program that has been repeatedly misused, according to an internal email obtained by WIRED.
In an April 20 email, FBI Deputy Director Paul Abbate urged employees to “continue to look for ways to appropriately use US person queries to advance the mission” of the bureau’s Foreign Intelligence Surveillance Act (FISA) Section 702 program. This program allows warrantless wiretapping of communications where at least one party is a foreigner outside the US.
Abbate stated the need to “use” tools like Section 702 to “demonstrate why they are essential” despite Congress just voting to extend the program for two more years after adding procedures intended to curb past abuses against protesters, journalists, and even a US Congressman.
The deputy director’s email seems to contradict the FBI’s previous assertions about aiming to “dramatically reduce” searches for American communications under Section 702, which permits wiretapping without warrants.
While the exact number of searches involving Americans is unclear due to changing methodologies, the FBI conducted over 2.9 million such queries in 2021 before dropping to 119,383 in 2022 and 57,094 in 2023 under new stricter guidelines.
However, a Justice Department review found the FBI’s compliance rate at only around 98%, meaning over 1,000 searches likely violated policies, now codified into law.
The FBI has touted this supposed 98% compliance rate to defend the program, but privacy advocates have long criticized Section 702 as unconstitutionally enabling warrantless surveillance of US citizens.
Abbate’s email urging more surveillance of Americans seems to “contradict earlier assertions from the FBI” that it aimed to rein in such practices, according to Rep. Zoe Lofgren.
After publication, an FBI statement mischaracterized WIRED’s reporting, falsely claiming it “alleged that the FBI instructed its employees to violate the law.”
Meanwhile, the House Intelligence Committee plans to hold a “FISA Fest” celebration this week for the 702 program’s extension, despite concerns over its domestic surveillance potential.
Committee leaders Rep. Mike Turner and Rep. Jim Himes recently pushed to defeat an amendment requiring warrants for FBI searches involving Americans caught up in 702 surveillance.
Instead, the new procedures they touted merely have FBI staff “opt-in” to access 702 data, obtain approval for database “batch queries,” and get higher clearance for searches involving officials, journalists, academics and religious figures.
However, surveillance critics warn the fuzzy limits of the “foreign intelligence” 702 aims to collect could enable spying on US allies, businesses and media under broad interpretations.
Even Senate Intelligence Committee Chair Mark Warner, who voted for 702’s renewal, acknowledged this week that “language needs to be fixed” to clarify the companies that can be legally compelled to aid surveillance.
While supporters frame 702 as targeting terrorist communications, the US government’s official stance is that it cannot confirm how many Americans are swept up in data collected to broadly advance “foreign affairs” goals.
The internal FBI email seems to encourage agents to expansively interpret and utilize a warrantless wiretap authority that civil liberties groups condemn as a violation of Americans’ constitutional privacy protections against unreasonable searches.