FBI Access to Spying Tool Should Be Restricted, Panel Advises

WASHINGTON—The Federal Bureau of Investigation’s access to a controversial intelligence trove of intercepted emails, texts, and other electronic data should be curtailed following serial missteps that have damaged public and congressional trust in the surveillance tool, a White House panel of intelligence advisers has concluded. 

The recommendation and others made by the panel come as a challenge to the Biden administration, which has spent months aggressively lobbying lawmakers to preserve the spying program, which is set to expire at the end of the year. Democrats and Republicans have said the program, while valuable to national security, threatens Americans’ privacy.

At issue is the FBI’s access to a cache of data collected under what is known as Section 702 of the Foreign Intelligence Surveillance Act. The President’s Intelligence Advisory Board, which consists of current and former officials and security experts, recommended that the FBI’s searches be limited to foreign intelligence purposes, as is the standard at other U.S. intelligence agencies that can access the intercepted data, and no longer allow hunts for evidence of a crime in non-national-security cases.

While critical of past FBI abuses of the database, the board warned that not renewing the surveillance power, as some lawmakers have threatened, would be catastrophic by blinding intelligence agencies to myriad threats facing the U.S.

“If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time,” it said.

It wasn’t clear whether President Biden would embrace the recommendation or the others made by the board. A senior administration official said the White House received the proposals within the past few weeks and regarded them as potentially acceptable—including the limit on non-national-security searches, which typically occur fewer than a couple dozen times a year.

“We look forward to reviewing the board’s recommendations for how we can secure this critical national security authority and to working with Congress to ensure its reauthorization,” Biden’s national security adviser Jake Sullivan and deputy national security adviser Jon Finer said in a joint statement.

Section 702 is due to expire at the end of the year, unless Congress renews it. Top Biden administration officials have said the program—classified details of which were revealed 10 years ago by former intelligence contractor Edward Snowden—is among the most vital national security tools in their possession, critical to preventing terrorism, thwarting cyberattacks and understanding the aims of adversaries such as China and Russia.

It allows the National Security Agency to siphon streams of electronic data from U.S. technology providers such as Meta and Apple. The data, collected in intelligence repositories, can then be searched without a warrant by spy agencies including the FBI, which has a robust counterintelligence mission.

Though intended for the communications of foreign national-security suspects living overseas, the database also holds information about Americans, gathered, for example, when a person living in the U.S. communicates with an intelligence target living overseas. Searches of U.S. data are the chief concern of lawmakers considering overhauls.

Other recommendations made by the board include creating a requirement that the FBI and other agencies adopt a rule that all searches of U.S. content be signed off by two individuals—a standard that already exists at the NSA. 

The board also urged the administration to seek a new certification from the Foreign Intelligence Surveillance Court for counternarcotics purposes, though the justification is largely redacted. The Biden administration has publicly discussed Section 702’s value to combating fentanyl trafficking, but a more explicit permission to use the tool for counternarcotics could broaden its utility, officials say. 

Notably, the board doesn’t recommend that the FBI or other agencies obtain a warrant before searching U.S. data, saying such an imposition would be overly burdensome and “would prevent intelligence agencies from discovering threats to the homeland.” 

Some lawmakers in both parties have expressed strong interest in taking the law’s looming expiration to broaden the current warrant requirement, which was imposed in 2018 during the program’s last reauthorization fight in Congress. 

Currently, the FBI only needs a warrant when searching the database for evidence of a crime unrelated to national security. Though such searches are done rarely, the FBI hasn’t adhered to that requirement since it became law, according to transparency reports released by the intelligence community.

The board was critical of the FBI’s history of wrongfully plumbing American data in the Section 702 trove, which have included improper searches of George Floyd protesters and sitting lawmakers, and said reforms needed to be adopted and codified in law.

The FBI has made significant improvements in the past two years by adopting a series of internal changes, the board said, but those were “insufficient to ensure compliance and earn the public’s trust.”

An FBI spokeswoman said in a statement that the bureau looked forward to engaging with Congress on the substance of the board’s report—but didn’t say whether it would accept the recommended limitations.

FBI Director Christopher Wray has apologized for past mistakes and said the bureau’s measures implemented over the past year—such as requiring written justifications for searches of U.S. data—were working. In a letter to congressional leadership this month, Wray also said the FBI was open to discussing potential changes that didn’t diminish the program’s national-security value.

Write to Dustin Volz at [email protected]