Intel Agencies Massively Undercounted Searches On Americans Under FISA Surveillance Rule, Report Finds

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A report released on Friday revealed that U.S. Intelligence agencies underestimated the number searches performed by Americans in 2018 through the controversial law of warrantless searches. This is about a third of the total.
The Foreign Intelligence Surveillance Act Section 702 of the FISA allows U.S. agencies to gather data about Americans without a search warrant, as a result of surveillance on foreign “targets”, abroad. This section is responsible for several thousand searches per year. According to the Office of the Director of National Intelligence’s (ODNI’s) annual report 2022 on the Intelligence Community’s use of FISA authorities, the Office discovered previously unrecognized errors in the number of searches or “questions” conducted under Section 702. This includes searches that were made as far back as 2017.

The report states that previous reports had recorded 9,707 “questions” made by Americans in 2018. However, after correcting the error and recalculating the numbers, the total rose to 13,892. The number of searches and the targeted individuals are not directly related. Multiple searches can be made to implicate a single individual.

The National Security Agency’s (NSA) report states that they “engaged in a comprehensive search to identify previously unreported U.S. persons query terms.”

The report noted that errors included “approved U.S. persons query terms which had been undercounted due to their classification and training of new personnel”, as well as “approved U.S. persons query terms which had been overcounted because of NSA’s method of counting.”

Other years had smaller over- or under-counts. The National Security Agency (which conducts queries with the FBI) found that they overcounted numbers by 830 in 2017 and 77 in 2019. They undercounted them by 64 in 2020.

According to the report, the number of non-U.S. citizens targeted under Section 702 increased from 232 432 in 2021, to 246, 073 in 2022. This is consistent with previous trends.

The report states that, overall, the intelligence agencies made 4,684 queries about U.S. citizens in 2022. This is down from 8,406 queries in 2021 and 7,282 queries in 2020. The agencies also gathered non-content metadata on U.S. citizens with 3,656 queries.

Section 702 requires that the Attorney General, the DNI and the FBI must review requests by the NSA to identify foreigners of intelligence value who are located abroad and disclose searches performed on Americans.

Leaders of the Justice Department and Intelligence Department argue that Section 702 must be adhered to by intelligence agencies in order to achieve their mission to protect national security. They also emphasize their commitment to protecting Americans’ rights to privacy.

“This authority is essential to keep the nation safe,” NSA director Gen. Paul Nakasone said to Congress on Thursday.

Sharon Bradford Franklin (chair of the Privacy and Civil Liberties Oversight Board) testified to Congress on Thursday that many privacy advocates were concerned about what they saw as an overreach by the FBI through incidental collections and queries. Critics refer to this as “backdoor search”.

Michael Horowitz (the inspector general of the Department of Justice) told Congress that in relation to FISA requests for Carter Page, an ex-Trump campaign official who is at the center of the Russian collusion accusations, the FBI “fell short of these standards”.

The powerful surveillance tool will sunset on December 31. Congress will vote whether to renew the rule.