Since 2013 the Office of the Director of National Intelligence (DNI) has published its Annual Statistical Transparency Report (ASTR), which discloses the US intelligence community’s “use of national security surveillance authorities.” (The most recognizable of these might be the Foreign Intelligence Surveillance Act of 1978, which set ground rules for various forms of law enforcement surveillance.) This extensive report covers a wide range of intelligence community updates and data, but this edition is uniquely concerning.
As originally spotted by The Wall Street Journal, the ASTR for calendar year 2021 states the FBI conducted “fewer than 3,394,053” US person queries between December 2020 and November 2021. Though the FBI is legally required to obtain an order from the US Foreign Intelligence Surveillance Court (FISC) prior to accessing the results of each search, none of these searches involved a warrant.
The searches are allowed under Section 702 of FISA Amendments Act of 2008, which permits the federal government to conduct surveillance of foreign individuals. Section 702 gives the government permission to compel internet service providers and wireless carriers to provide personal data for the sake of foreign intelligence. The DNI’s own Section 702 primer emphasizes that this section only permits targeted electronic surveillance of those outside the US, saying the intelligence community is not provided permission to target US citizens at any time regardless of their location—but the DNI quietly allows the FBI to operate under its own interpretation of the rules.
According to the most recent ASTR, the FBI’s standard for conducting searches under Section 702 is “fundamentally different” from that of other agencies in the intelligence community. “Where NSA, CIA, and NCTC are authorized to query Section 702-acquired contents and noncontents for foreign intelligence information, FBI is authorized to conduct queries that are both reasonably likely to return foreign intelligence information and … queries that are reasonably likely to return evidence of a crime,” the report reads. This means the FBI can perform any query it (along with the FISC) deems relevant to a criminal or foreign intelligence investigation, regardless of whether the targeted individual is a US citizen. This special privilege has been available to the domestic-focused FBI since 2009.
The report states multiple queries of the same individual are counted as separate when conducted by the FBI, meaning nearly 3.4 million queries may have covered less than 3.4 million Americans. Still, FBI officials admit the figure is “certainly a large number.” “I am not going to pretend that it isn’t,” one senior official said during a press briefing.
Federal officials have since stated at least half of the searches were related to an investigation involving a Russian threat against US critical infrastructure. As of this writing, officials have not provided any further details on the alleged threat.