FBI Director: FISA Section 702 warrant requirement a 'de facto ban'
theregister.com
theregister.com
> query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources
That is exactly how it's supposed to work, right? If they don't qualify for a warrant, then the warrant will not be issued and it is the responsibility of the investigators to do the work and find probable cause to justify the warrant.
> To be sure, no one more deeply shares Members' concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do
Based on the next quote, I do not think he shares any concern over abuse whatsoever.
> hold our personnel accountable for misuse of Section 702 and other FISA provisions, including through an escalating scheme for employee accountability, including discipline and culminating in possible dismissal.
If he did share the concerns about abuse, why not have the discipline process culminate in personal liability including fines, prison and more?
Why?
I mean, I know you mean this as lead-in for arguing for accountability. I do get that. But the wording - it is sticking with me.
It sticks because US federal LEO & IC directors lie. Serially. Every administration. ~Every public remark.
As in some directors do not tell one meaningful public truth throughout their term. Most directors lie at close to that rate. Generally they lie by omission and obfuscation but they will lie about plain facts, if necessary, to advance an agenda or defer accountability. Believing them by default is an absurd thing to do.
The leadership directly below directors aren't well known to be better.
When certain positions have a low-truth history that stretches for generations, maybe we should recognize that. We ought not accept their assertions as factual; any consideration should come with worthwhile vetting and analysis.
Well said. I agree completely.
He has no concern about abuse.
I assume you mean "refer for potential criminal prosectution". Apropos of anything else, you'd have a hard time getting a federal employee contract to allow arbitrary fines to be issued against an employee, etc.
It would frankly be insane if your three-letter agency _didn't_ work this way. Everyone needs to understand what the interpretation of the law is, what the legal guardrails are. If you disagree with this, the answer is not just do what you want with FISA.
That is, the interpretation was meant to justify what people might be tempted to do.
Self selection would be one example. To be fair, when I once had a beer with someone who worked in that area before coming to academia she basically said you could work out how many intelligence officers a country had, and realise that given the amount of time effort and money it takes to properly surveil someone they were limited to a small multiple of that number of people to spy on "properly". I felt reassured by that. I can also see it being a justification for RoboCop.
"Oh... I was going for promo."
I haven't followed what it's been up to over the last 12 years, but it's nice there was actually some expiry in there. Certainly the US intelligence apparatus existed pre 9/11. Would FISA courts and secret warrants have prevented 9/11, who knows. Did all the agencies get a rubber stamp in everything they ever wanted in response to 9/11 under the guide of patriotism, during a period of intense groupthink -- likely.
We already could have prevented 9/11 with the intelligence that we had at the time. Al-Qaeda was already known to be targeting US assets since the USS Cole bombing, every branch of the intelligence agency was already trying to spy on al-Qaeda[0], and the FBI specifically were already aware of the hijackers[1]. We even had multiple warnings from foreign governments about al-Qaeda[2].
The problem was a matter of correlating all that intelligence into some kind of actionable intervention. All the things I mentioned needed to be put together into a comprehensive list of people to arrest and where to find the evidence necessary to keep them behind bars for a decade. Anything less renders the whole effort futile - if you miss some hijackers, the attacks still happen; if you fail to make the charges stick, then the attacks happen later. More SIGINT doesn't always help: if anything, it means more information overload and more potentially missed threats.
[0] https://en.wikipedia.org/wiki/George_Tenet#Al-Qaeda_and_the_...
[1] https://en.wikipedia.org/wiki/Hijackers_in_the_September_11_...
[2] https://en.wikipedia.org/wiki/September_11_attacks_advance-k...
I think this bill that the FBI is opposed to is the first real reform we're seeing that actually takes away some power from these agencies.
All the 'temporary' powers granted with an expiration period have been renewed or expanded for the last 30 years. Often as little-noted riders on lesser bills of questionable relation, or bundled as side notes into major debacles like threats of government shutdown.
Other than very high war profiteering tax rates imposed during WWII - which were not only refundable but also removed over time - there is almost no connection at all between WWII and the broad concept of federal income tax.
[1] https://en.wikipedia.org/wiki/Sixteenth_Amendment_to_the_Uni...
yeah, the CIA was busy welcoming terrorists into the country [1], one of whom would get convicted of planning the 1993 WTC bombing:
"he tried to re-enter the U.S. in August 1991. At that point, U.S. officials recognized that he was on the lookout list, and began the procedure to revoke his permanent resident status. The U.S. government still allowed him to enter the country, as he had the right to appeal the decision to revoke his residency status. Abdel-Rahman failed to appeal the decision, and on 6 March 1992, the U.S. government revoked his green card. He then requested political asylum. A hearing on that matter was held on 20 January 1993.[14] It was later revealed that Abdel-Rahman was given most of his visa approvals by the CIA.[15] Egyptian officials have testified that the CIA was actively assisting him in entering the US.[16][17] The CIA also protected Abdel-Rahman after he arrived in the United States.[18]"
https://act.eff.org/action/tell-congress-absent-major-change...
> I implore you not to support any attempts to renew Section 702 of FISA without major reforms that project privacy
I assume that should be "protect" privacy, not "project"...
Of course having an agency with arrest powers that "investigates itself," more power also raises profound risks.
I knew that the organization most often responsible for terrorist plots on American soil was the FBI, and I decided to take advantage of this.
Speaking of warrants, I’d like to start seeing judges held accountable for “bad warrants”, the rubber-stamp problem is real.
It could be tied to their salary. It could be a 3 strikes policy. Something they care about should be put on the line when they sign a warrant. If they get it wrong and the warrant was frivolous, they lose something. If they get it right, and the search produces exactly what they predicted, then they get something. Judges would very quickly turn away investigators with insufficient evidence. It would also produce some very wealthy judges who would be worthy of their title according to an objective measure. The best judges would be the wealthiest.
Needless to say, they shouldn't be presiding over the trial, which determines whether the warrant produces a guilty verdict.
Good grief, I can think of a variety of ways that this incentive would result in horrific corruption. Judicial impartiality is important and all too easily sullied; for instance, see: https://en.wikipedia.org/wiki/Kids_for_cash_scandal
https://www.npr.org/2023/02/22/1158356619/plea-bargains-crim...
No, they are absolutely not.
At best that's ignoring a lot of nuance, at worst that's just flat-out incorrect.
When a judge signs off on a warrant, they are only saying that they agree with law enforcement that serving the warrant would help move a particular investigation forward, and that the actions they'd need to take to serve the warrant are legally supportable. That's it.
What I'm saying is that the system, as currently designed and implemented, reveals a judge's implicit beliefs, when they sign or veto a warrant. These beliefs paired with the result of a search directly reflect how good their "judgement" really is. And I'm suggesting that we make those beliefs explicit as predictions.
If they are, having their hit track record fully publicly available would help. Not in detail of course, but aggregated by crime type for example.
It will be prone to abuse. But any system/solution will be. The trick is to find the one that is the least affected. Or when it is abused, doesn't come with huge side effects.
The Federal Judiciary is appointed by the President and confirmed by the Senate.
If your suggestion is that we ought to change the constitution, good luck.
No, it (arguably, it doesn't actually do this directly) [0] limits removal from office to the impeachment process. It doesn't prevent judges from being liable for civil or criminal penalties for misconduct without impeachment, and indeed impeachment has been known to be initiated after criminal conviction if a judge for misconduct when the judge stubbornly refuses to resign before that.
[0] the limitation is inferred from the “in good behavior” term of office and the availability of impeachment.
That process does however lead through other judges who have plenty of motivation to find a reasoning that leads to judges being hard to attack civilly or criminally. We already have tons of little loop holes of accountability to sail right through.
If it's real then please provide supporting evidence for that claim.
> FISA warrant requests are rarely denied. During the 25 years from 1979 to 2004, 18,742 warrants were granted, while only four were rejected. Fewer than 200 requests had to be modified before being accepted, almost all of them in 2003 and 2004. The four rejected requests were all from 2003, and all four were partially granted after being submitted for reconsideration by the government. Of the requests that had to be modified, few were before the year 2000. During the next eight years, from 2004 to 2012, there were over 15,100 additional warrants granted, and another seven being rejected. Over the entire 33-year period, the FISA court granted 33,942 warrants, with only 12 denials – a rejection rate of 0.03 percent of the total requests.[4] This does not include the number of warrants that were modified by the FISA court
"In a following letter Walton stated that the government had revamped 24.4% of its requests in the face of court questions and demands in time from July 1, 2013 to September 30, 2013."
"When [the Government] prepares an application for [a section 215 order, it] first submit[s] to the [FISC] what's called a 'read copy,' which the court staff will review and comment on. [A]nd they will almost invariably come back with questions, concerns, problems that they see. And there is an iterative process back and forth between the Government and the [FISC] to take care of those concerns so that at the end of the day, we're confident that we're presenting something that the [FISC] will approve. That is hardly a rubber stamp. It's rather extensive and serious judicial oversight of this process."
https://www.stanfordlawreview.org/online/is-the-foreign-inte... explains why the final win rate is so high and that it is exactly in line with other ex parte court orders:
"Title III statistics strongly support the basic prediction that a lopsided win rate is a general feature of ex parte proceedings, not a unique characteristic of the FISC. Between 1968 and 2012, state and federal agencies made 50,419 requests for Title III wiretaps, and federal courts approved 99.93% of these requests."
"Ultimately, we should care about the substance of what the court approves, not the frequency with which it does so. And if the substance of what the court does affects how the government selects applications, there’s no reason to think FISC reforms will change the win rate."
That substance is reviewed by Congress.
What needs to happen is that the whole process needs to be made open to the public, as it should always have been. There is no acceptable reason to hide a process like this from the public. Once it is in the public view, we can properly judge whether the requests are truly just being rubber stamped. And, as a bonus, being forced to make these requests public would almost certainly reduce (though likely not eliminate) any extant abuse of this process.
> four were rejected.
If it's a rubber stamp, why are any rejected?
All we know is that they grant 99.98% of the warrants asked-for. That's a massively suspicious rate of approval that is more likely explained by the rubber stamp than careful consideration and evaluation.
Nothing in this world has that kind of success rate without some sort of shenanigans.
Congress does.
> Nothing in this world has that kind of success rate without some sort of shenanigans.
That's your assumption. I have a higher success rate of safely driving to work.
what purpose does the filter serve if it allows virtually all requests through? your response amounts to "trust the FBI, they don't need oversight".
> I think the FBI understands the process and doesn't send flimsy requests in the first place.
I would love to see your evidence for this.
> If it's a rubber stamp, why are any rejected?
because those requests were egregiously bad?
warrant approval is bad across the board, even when the requests are public[1]. what reason do we have to assume they're better when they're sealed? "the FBI is self-regulating" doesn't pass muster when we can see the warrant requests they put forward and get approved when the details are public.
[1]: https://www.popehat.com/2014/07/15/warrants-bulwark-of-liber...
What would you think about a class where 18,742 students passed it and 4 failed it, or a company where 18,742 employees have acceptable performance and 4 are fired?
You think a good process is one where definitionally 50% of the warrants get rejected?
In that case: just file 2x garbage warrant requests so the ones you care about are "correctly" guaranteed to be at the top.
One way to resolve this is to not have secret courts. Then we can judge the merits of these warrant applications in the light of day. If National Security is an issue, then delay the publication of court records by some fixed amount, and require an onerous process to keep the ongoing stuff sealed for those rare cases where it's needed.
But in practice, you or I or anyone else should be able to pull up all the warrants issued in 2016, or 1994, or 2021. We should be able to assess the quality of the supporting PC, we should be able to track the success rate of these searches (How many ultimately went nowhere? What was the FBI focused on in a particular year? Etc.)
All of this is a bare minimum requirement for a free and open society. Instead we get secret courts and a single statistic (99.98% acceptance rate). That's basically the same as a North Korean approval rating, or the electoral performance of a dictator. It's just too perfect to pass muster.
Didn't you just describe a secret court? I don't think these records don't exist or are permanently classified.
We don't need to. Based on what we already know, through years of news, abuse, etc., it is entirely inconceivable that every (or nearly every) single request is the perfect paragon of thoroughness and reasonableness.
> If it's a rubber stamp, why are any rejected?
Because no one actually uses "rubber stamp" to mean that literally every single thing goes by, unquestioned.
I do. That's what it means, after all.
Or it was a duplicate.
To the downvoters - please think about what you're doing by punishing a request for evidence/a source. It does not make for a healthy discussion forum where one can expect to make claims without having to support them, or where asking for that support is seen as an attack. Even if it is an attack, it should not be treated as hostile.
GSRA still allows USGOV to wiretap communication links/facilities and save a copy of the communications without any individualized suspicion for those communications. Let's be clear: This is mass surveillance.
This would be fine if it were strictly used for foreign intelligence purposes and completely firewalled off from domestic criminal law enforcement.
But that's not what GSRA does. GSRA still allows the warrantless and suspicionless mass seizure of communications, it just says that the government needs to apply for a warrant to search through them retrospectively.
Don't get me wrong, that's a whole lot better than the current situation where FBI/NSA/CIA do not even need a warrant, but it's still mass surveillance and it's still incompatible with the Constitution.
That's not even what the previous paragraph said. They don't need a warrant if there is imminent danger to life, not if they just don't have time to get one. The latter implies they could use it for anything they wanted as long as they made an argument that time was of the essence, which seems like a fairly low bar to clear.
In the digital world, your data is your identity and we should be working to ensure proper rights and frameworks around it.
https://datatracker.ietf.org/doc/html/rfc7258 and here is working group that related to it. https://datatracker.ietf.org/rg/pearg/about/
https://standards.ieee.org/beyond-standards/data-sovereignty...
> Section 702 allows the Feds to warrantlessly spy on communications belonging to foreigners outside of the United States in the name of preventing crime and terrorists attacks.
Now they're telling us, again, that they should be able to spy on US Persons' communications with friends/family/business interests abroad without a warranty because warrants are too inconvenient.
No. A decent, but my no means huge, number of people have opinions about this subject. But the number for whom it is a high enough priority issue that it would determine if they would vote or who they would vote for is infinitesimal.
If you're POTUS, you can pretty safely assume you're getting the nomination - safely enough that "losing the nomination to someone in my party" can be ignored as a realistic outcome to any single action. It's pretty reasonable to think about $ISSUE_X as something that might cause a primary voter to vote for one candidate over the other. But the number of issues that would cause someone to vote for the other party because of that one issue is almost zero.
Biden could issue an executive order repealing the NFA and saying machine guns are legal to manufacture and purchase without ATF review, and most hardline 2A advocates would still vote for whoever the Republican ends up being. Trump could have issues an EO making abortion legal at any time and making college free and Biden would have gotten just as many votes in 2020.
Really the only thing Biden has to worry about is not doing so many things his base gets upset about that they don't turn out to vote. There's very little he could do to turn someone from "strong D" to "strong R" at this point.
Correct. Nor do they even understand, or want to understand.
They're going to tell you that 5G implants chips under their skin though...
Regardless of who is doing it, it is wrong. Even if you think its great that <your party> had their political opponents audited by the IRS, investigated and harassed by the FBI, etc. remember that in a few years the party in control can change and those same dictator-like tactics are now available to them to use against <your party>.
> "A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have," Wray said.
That's even worse than the abbreviated statement.
Fool me once, shame on you. Fool me twice ... you can't get fooled again.
That is to say, they're targeting individuals who they have no substantial reason to believe actually did anything wrong.
Remember that you can't even sue for having been warrentlessly wiretapped unless you can prove the government did it ahead of time. (https://en.wikipedia.org/wiki/Clapper_v._Amnesty_Internation...)
He said it correctly: it wouldn't meet the legal standard. That should mean, correctly, you cannot invade people's privacy, but again it's pretty unrelated to "are they investigating crimes or not."
Edit: GP's comment was edited from "That is to say, they're not even investigating a crime." That claim is untrue.
> That isn't true. It means it wouldn't reach probable cause.
So, investigating a crime should lead you to some evidence that you would than have a substantial reason to request a warrant to target an individual. You're letting the tail wag the dog if they can do the targeting before they know who to target. If they don't have any evidence to target a person but they suspect that person of doing something illegal then that's called a hunch. Scooby doo and his gang were great at following hunches, but that shouldn't be how the FBI operates.
The reason for allowing them to spy on foreigners isn't because foreigners are criminals. It's because we believe surveillance of foreigners might provide some protection for us. They are trying to prevent crimes, not solve them.
Which translates to we will not be able to go around Constitutional protections or ignore laws with impunity.
The FBI has it tough (and rightfully so). Their role as law enforcement and domestic counter-espionage agency are almost opposed to one another when it comes to evidence. What passes for actionable intelligence is very different than evidence needed for criminal court. Aside the standards being different, an actor who is a national security threat and a criminal are often very different, even though they both might "break the law."
So let me get this straight?
basically if I (non us citizen) make some dumb joke in a private conversation (with another non-us citizen) about bombing some place in the US and also mention, say, Elon Musk or Hilary Clinton or Donald Trump or Alexandra Ocasio-Cortez (even though i clearly have no relation to any of them) then the FBI has "legal ground" to intercept and store their private communication?
What may really blow your mind is that s.702 also authorizes collection of foreign data held by subsidiaries of US companies. Foreigners making decisions about data residency need to understand this, but many don't. It is not sufficient to avoid s.702 to just store data in a foreign datacentre, if that datacentre is owned by a subsidiary of a US company.
The only thing that strikes me as possibly uncommon about this is that the US publicly encodes it as law. How is this mind blowing? There is no place on earth where the sitting government does not have access to the things on it's territory.
Yeah Chris, that is the point.
> He did address the FBI's earlier abuses of Section 702 to spy on protesters, campaign donors, and even elected officials.
> "To be sure, no one more deeply shares Members' concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do," Wray said.
> The FBI "responded rigorously" to these violations, he added, and that already "dramatically" reduced the 702 searches on US persons, he added.
> "Moreover, as we publicly announced in June, the FBI is implementing further measures both to keep improving our compliance and to hold our personnel accountable for misuse of Section 702 and other FISA provisions, including through an escalating scheme for employee accountability, including discipline and culminating in possible dismissal."
Anchorman Ron Burgundy I don't believe you meme here.
If you can’t do it within our legal framework that at least pays lip service to balancing freedom vs security, then don’t do it.