FBI analyst improperly searched surveillance data to find name of US senator, court hears

An FBI analyst performed an improper search of a government surveillance database last year using the last name of a US senator, according to a newly declassified court document released Friday.

The disclosure is included in the Office of the Director of National Intelligence’s release of a 117-page April order issued by the Federal Justice’s Foreign Intelligence Review Court, which typically makes decisions in secret. The surveillance court ruling notes more broadly that, despite the improper search in 2022, “there is reason to believe the FBI did a better job” of adhering to its own rules for using warrantless surveillance.

But the reported search for a senator comes as a key moment for the future of the FBI’s surveillance power: There is growing bipartisan support on Capitol Hill to enact new reforms to the authority and the broader law under which it is housed. Although it was designed to target overseas residents, the program can also sweep up communications from Americans – and has come under bipartisan scrutiny for doing so.

Congress must decide by the end of the year how and whether to expand the surveillance program. Among the changes lawmakers are now considering are new limits on how the FBI can search for American people swept up in the program. The inappropriate search revealed by ODNI on Friday could further cloud this debate.

According to the newly declassified court document, in June 2022, an FBI analyst conducted four searches for information gathered under the warrantless surveillance program “using the last names of a U.S. Senator and a State Senator.” In both cases, the analyst had information showing that the two lawmakers were targeted by a foreign intelligence service.

A senior FBI official stressed that “none of these people were being monitored” and that the FBI “did not collect any information about them” in response to the search. The analyst performed an unapproved search “of our databases to retrieve any information already lawfully collected,” the official added.

But the database searches nonetheless violated FBI policy on several fronts, according to the court document.

The analyst in question, whom the court did not name, did not obtain the deputy director’s prior approval required for searches using “sensitive query terms”, such as the names of public officials or candidates. More generally, the analyst’s searches did not meet the bar for being “reasonably likely to recover” foreign intelligence information or evidence of a crime, the Foreign Intelligence Surveillance Court notes.

The senior FBI official added that if the analyst’s requests had been sent for pre-approval in accordance with policy, “they would not have been approved.”

The court document does not reveal the identity of the US senator whose name has been sought. When asked if it was a current US senator, the senior FBI official told reporters that the individual in question was in office in June 2022 when the search for the analyst was carried out. (Seven senators have left Congress since then.)

The FBI discussed the search with the U.S. senator but did not directly disclose the breach to the state senator, the office official said.

Additionally, the Foreign Intelligence Surveillance Court notice released on Friday found that the FBI conducted an improper search for a state judge via that person’s Social Security number in the surveillance database, which took place in October.

It’s also not the first time the court has revealed that an FBI analyst improperly sought surveillance data without a warrant for a member of Congress.

A footnote in a recently declassified report on the surveillance program’s use of authority between December 2019 and May 2020 indicates that an FBI intelligence analyst queried surveillance databases using only the name of a member of the US House. Rep. Darin LaHood (R-Ill.), who is now leading House Intelligence Committee discussions on reforming the program, later said he believed he is this legislator in question.

Since 2021, the FBI and the Department of Justice have worked to impose new guidelines and internal reforms aimed at preventing misuse of the surveillance tool. For example, the tone of the April order is significantly different from a 2021 supervisory court order also declassified by the ODNI on Friday.

In that 2021 order, the court calls problems with the FBI’s surveillance program “substantial and ongoing.” He adds that failure to correct these issues “would bring into question,” among other things, the court’s ability to conclude that the FBI’s surveillance procedures “complied with legal requirements and the Fourth Amendment.”

By comparison, in the April order, the supervisory court noted “recent indications that the FBI is improving its implementation of the interrogation requirements of Section 702.” (Section 702 is the statutory provision of the Surveillance Act that created the program.)

Among the FBI’s reforms, the court noted: requiring additional research compliance documentation; change internal search parameters; require additional approval for “batch” requests, mandatory and annual additional training; and additional research review. FBI Director Christopher Wray has also touted the creation of an internal audit office that he says focuses specifically on warrantless surveillance.

“The 2023 FISC Notice confirms the significant improvement in FBI Section 702 compliance since implementing our substantial reforms,” Wray said Friday. “Compliance is an ongoing effort, and we recently announced additional new accountability measures.”

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