Just declassified: US senator caught up in Section 702 FBI surveillance dragnet

The FBI improperly spied on a US senator, a state senator, and a state-level judge, among others, according to a previously secret court opinion released Friday afternoon.

The freshly declassified April 11 Foreign Intelligence Surveillance Court (FISC) opinion concerns the controversial Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the Feds to snoop on foreigners' electronic communications.

The timing is especially significant: it comes as Congress considers whether to reauthorize Section 702 before it expires at the end of the year. Let's just say it's likely to have one less supporter on the Senate floor.

FISA is the 1978 federal law, since amended, that allows the FBI, CIA, and NSA to collect foreign intelligence domestically, and Section 702 primarily permits the targeted warrantless surveillance of communications belonging to non-US persons located abroad – ideally to prevent criminal and terrorist acts. 

While it's supposed to be limited to foreign communications, the surveillance dragnet can, and often does, sweep up phone calls, texts, and emails involving US persons who may have had connections with intel targets.

Despite American intelligence agencies labeling the snooping powers "absolutely critical" to protect those living in the US, pressure from Democratic and Republican lawmakers to limit Section 702 powers appears to be growing.

Earlier this week, Senator Ron Wyden (D-OR) said he plans to introduce surveillance reform legislation "in the coming weeks," and the court documents released today will likely add momentum to the calls for reform.

A US senator, state senator, and judge walk into Section 702

In the case of the senator and state senator, an FBI worker ran a surveillance database search on them that was deemed a breach of policy by the Dept of Justice's National Security Division (NSD).

"In June 2022, an analyst conducted four queries of Section 702 information using the last names of a US Senator and a state senator," according to the heavily redacted FISC opinion issued in April [PDF]. "The analyst had information that a specific foreign intelligence service was targeting those legislators, but NSD determined that the querying standard was not satisfied."

Additionally, in October 2022, an FBI specialist broke the rules by running "a query using the Social Security number of a state judge who 'had complained to FBI about alleged civil rights violation perpetrated by a municipal chief of police.'"

The opinion also noted another Section 702 violation concerning a search of one of the January 6 rioters who stormed the Capitol building.

• FBI abused spy law but only like 280,000 times in a year
• US senators and spies spar over Section 702 warrantless surveillance
• Proposed ban on data brokers selling warrantless personal info to Feds revived
• FBI: FISA Section 702 'absolutely critical' to spy on, err, protect Americans

Despite these failings, "there is reason to believe that the FBI has been doing a better job in applying the querying standard," the secret court said. 

An earlier FISA court opinion, released in May, found that the FBI abused its surveillance powers more than 278,000 times between 2020 and early 2021.

The April opinion, along with a September 2021 FISA court opinion also released today, were both made public following a Freedom of Information Act lawsuit and request by the American Civil Liberties Union (ACLU).

"These disturbing new revelations show how Section 702 surveillance, a spy program the government claims is focused on foreign adversaries, is routinely used against Americans, immigrants, and people who are not accused of any wrongdoing," Patrick Toomey, deputy director of the ACLU's National Security Project, said in a statement.

He continued: "The FBI continues to break the rules put in place to protect Americans, running illegal searches on public officials including a US senator, and it's long past time for Congress to step in." ®