The Intelligence Community today released, in redacted form, the April 2023 Opinion of the Foreign Intelligence Surveillance Court (FISC), which highlights that the remedial measures the FBI began implementing in 2021 and 2022 are working to improve the FBI’s Section 702 query compliance. The 2023 Opinion also demonstrates the effectiveness of the FISC’s oversight responsibilities, as well as the FBI’s commitment to full compliance.
"The 2023 FISC Opinion confirms the significant improvement in the FBI’s Section 702 querying compliance since the implementation of our substantial reforms," said FBI Director Christopher Wray. "Section 702 is critical in our fight against foreign adversaries. We take seriously our role in protecting national security and we take just as seriously our responsibility to be good stewards of our Section 702 authorities. Compliance is an ongoing endeavor, and we recently announced new additional accountability measures. We will continue to focus on using our Section 702 authorities to protect American lives and keeping our Homeland safe, while safeguarding civil rights and liberties."
The 2023 FISC Opinion released today, which reviewed activity after the 2021/2022 reforms were implemented, highlights how the FBI’s reforms have contributed to significant improvements, saying there were "further indications that the measures are having the desired effect." Notably, the Court calculated the FBI’s compliance rate with the querying standard to be over 98% after these reforms were implemented.
The FISC acknowledged it was encouraged by the reforms and it "anticipated that the new default settings ‘should eliminate non-compliance stemming from inadvertent querying’ of such information." The Court also "noted 'preliminary indications' that such changes were 'resulting in substantial reductions in the number of U.S.-person queries.'"
While the Opinion cited incidents of noncompliance with the FBI’s Sensitive Query Policy and Querying Procedures—as well as compliance incidents that were previously disclosed in the FISC’s previously released 2022 Opinion—the Court nonetheless determined that, "Despite the reported errors, there is reason to believe that the FBI has been doing a better job in applying the query standard."
Additionally, in the time since these incidents occurred, the FBI has implemented new FISA query accountability measures with escalating consequences for negligent conduct to further deter the kinds of compliance incidents cited by the Court.
Most notably, the Court concluded that, "Given recent indications that the FBI is improving its implementation of Section 702 querying requirements, the Court finds that the FBI’s querying and minimization procedures, taken as a whole and as likely to be implemented, are consistent with the requirements of the statute and the Fourth Amendment."
FISA Section 702 is an indispensable tool in the FBI’s efforts to protect against national security threats. It authorizes the targeted collection of foreign intelligence information from non-U.S. persons located abroad. Section 702 will expire on December 31, 2023, unless Congress takes action to reauthorize it.
The FBI is responsible for upholding the Constitution and protecting Americans, including their privacy and civil liberties. Section 702 authorities are crucial to fulfilling our mission, but the FBI acknowledges that noncompliance is unacceptable. Continued improvement to 702 querying standards is vital to maintaining public trust, and the FBI is committed to taking effective measures to ensure compliance.
Background Information
The Intelligence Community (IC) today released, in redacted form, the Foreign Intelligence Surveillance Court’s (FISC) April 2023 Opinion, which post-dated FBI FISA reforms.
- The Court highlighted that these major reforms the FBI implemented in 2021 and 2022 to improve Section 702 querying compliance are working.
- The 2023 Opinion discussed many of those remedial measures, concluding they were encouraged by the reforms and acknowledged that there are “further indications that these measures are having the desired effect.”
The FISC’s previous April 2022 Opinion was released by the IC in May 2023, which the Court discussed in the 2023 Opinion.
- The 2022 Opinion documented a series of significant compliance incidents regarding the FBI’s querying of FISA Section 702 information.
- Notably, the FISC’s 2022 Opinion reviewed activity that pre-dated the FBI’s reforms from 2021/2022.
- The Court had not had the opportunity to review the FBI’s querying practices after the implementation of our reforms at the time of the 2022 Opinion
The 2023 Opinion issued today included review of FBI practices after the implementation of the 2021/2022 reforms.
- The same judge who issued the April 2022 opinion, in reviewing the FBI’s querying over the last year and during periods after our reforms went into effect, found improvement in multiple areas.
- The Court made several statements throughout the Opinion highlighting the effectiveness of the reforms:
- Page 83: “There are further indications that these measures are having the desired effect.”
- Page 87: “…there is reason to believe that the FBI has been doing a better job in applying the query standard.”
- Page 88: “…implementation of the querying standard is encouraging” and “On balance…FBI application of the querying standard appears to have improved.”
- Page 88: “The information reported regarding the FBI’s recent implementation of the querying standard is encouraging,” and “On balance…FBI application of the querying standard appears to have improved.”
- Page 93: the Court cited “recent indications that the FBI is improving its implementation of Section 702 querying requirements” when finding the FBI’s querying and minimization procedures to be consistent with the statute and the Fourth Amendment.
The Court found the FBI’s compliance rate with the query standard to be over 98% after our reforms were implemented.
- Page 84/85: The Court calculated the FBI’s rate of non-compliance with the query standard as about 1.7% for queries against Section 702 data, and about 1.8% for all FISA queries.
The 98% compliance rate shows our reforms have led to substantial improvement; however, there are still errors. The Court discusses some of these in the opinion:
- Page 86: Non-compliant queries of a U.S. and state senator in June 2022, which were not sufficiently tailored, and which did not receive pre-approval.
- Page 86: Non-compliant query of a state judge in Oct 2022, which lacked adequate justification, and which did not receive pre-approval.
- Page 86, Footnote 52: May 2022 queries of U.S. academic, which complied with the query standard, but personnel failed to obtain the pre-approvals required under the FBI’s new policies.
- Page 87, Footnote 53: Batch query of 1,023 terms, which complied with the query standard, but personnel failed to obtain the pre-approvals required under the FBI’s new policies.
- Page 87/88, Footnote 56: The Court documents a number of smaller non-compliant batch queries, while noting they do not approach the scale of prior errors.
- Pages 88 to 90: Mislabeling errors in FBI’s recordkeeping, which are unrelated to compliance with the query standard. As the Court notes, these mostly involve erroneously giving the added protection of U.S. person status to non-U.S. person queries.
- In response to noncompliant batch queries, in June 2023 Deputy Director Abbate mandated that pre-approval by an FBI attorney be required for all batch queries, not only those resulting in 100 or more queries.
- The FBI’s Office of Internal Auditing found similar mislabeling errors in their review, as was reported in May 2023. The OIA made two recommendations to correct the errors, both of which the FBI is working to implement.
The first four incidents above involved a failure by the user to properly follow new policies the FBI put in place during its 2021-2022 remedial measures.
- New, improved mandatory FISA training went into effect in December 2022, after all of the above-mentioned compliance incidents occurred, and now requires users to demonstrate understanding of our policies before they can complete the training.
Deputy Director Abbate announced new accountability procedures in June 2023 defining specific consequences for employees who fail to properly abide by policies the FBI has put in place to prevent exactly the above types of noncompliance.
- These accountability procedures are detailed in a June 13, 2023, press release available on the FBI’s website.
The 2023 Opinion also cites several previously disclosed compliance errors. It is important to note that these are not new incidents. For example:
- Page 87, Footnotes 54: and 55 References from the 2018 and 2022 Opinions respectively the Court cited to strike a contrast between prior practices and the improvements documented in the 2023 Opinion.
- Page 88, first two bullets: Prior violations involving two field offices are references from the 2022 Opinion which the Court cited to strike a contrast between prior practices and the improvements documented in the 2023 Opinion.
- Page 91: The Court discusses violations of the court order requirement in Section 702(f)(2). These are the same incidents the Intelligence Community previously disclosed in the Office of the Director of National Intelligence’s Annual Statistical Transparency Report in April 2023—they are not new nor newly-identified incidents.
