The House Intelligence Committee has proposed 45 “improvements” to be included in upcoming legislation to continue the 702 program. These include criminal liability for leaks involving an American’s communications, enhanced penalties for federal employees who violate FISA procedures, and the appointment of a court-approved counsel to scrutinize FISA applications aimed at surveillance of US citizens.
The report was prepared by a working group comprising three Republican members: Turner from Ohio, and representatives Darin LaHood and Brian Fitzpatrick from Illinois and Pennsylvania, respectively. The working group emphasizes that federal courts have consistently deemed the 702 program constitutional when its procedures are not circumvented by negligent employees or willful violators for nefarious purposes.
The FBI and the Biden administration have urged Congress to reauthorize the 702 program without changes, despite growing calls for reform. This has led to the introduction of a comprehensive privacy bill—the Government Surveillance Reform Act—seeking to impose warrant requirements on the FBI. Currently, the FBI can search 702 data without a judge’s consent if it’s “reasonably likely” to find evidence of a crime.
FBI director Christopher Wray opposed the proposed warrant requirement, stating it would be a “significant blow” to the bureau’s national security division. Wray argued that the FBI would struggle to meet the legal standard necessary for court approval and that the warrant process would be too slow to address rapidly evolving threats.
The report also outlines “significant” violations at the FBI, most of which were reported to the Foreign Intelligence Surveillance Court in 2022 before being made public in May. The majority of the incidents occurred prior to a set of “corrective reforms” that the FBI claims have effectively addressed its compliance issues.
The report attributes “most” misuses of 702 data to the FBI’s culture, which granted access to many “poorly trained” agents and analysts with few internal safeguards. It states that FBI systems for storing 702 data did not require employees to “affirmatively opt-in” before querying the system, leading to inadvertent noncompliance issues. Additionally, it criticizes FBI management for not taking query compliance incidents seriously and being slow to implement necessary reforms.