FBI wrongly searched for US senator and state senator in Section 702 spy data, court says

FBI employees wrongly searched foreign surveillance data for the last names of a U.S. senator and a state senator, according to a court opinion released Friday. The disclosure could further complicate Biden administration efforts to renew a major spy program that already faces bipartisan opposition in Congress.

Another FBI employee improperly queried the Social Security number of a state judge who alleged civil rights violations by a municipal chief of police, according to the opinion by the chief judge of the Foreign Intelligence Surveillance Court.

News of the latest violations comes as the Biden administration faces a difficult battle in persuading Congress to renew Section 702 of the Foreign Intelligence Surveillance Act, which allows spy agencies to collect swaths of emails and other communications.

Already this year, U.S. spy officials have disclosed that the FBI improperly searched Section 702 databases for information related to the Jan. 6, 2021, riot at the U.S. Capitol and the 2020 protests following the police killing of George Floyd.

U.S. officials say Section 702 enables their highest priority work on China, Russia and threats like terrorism and cybersecurity. But many Democratic and Republican lawmakers say they won't vote to renew Section 702 when it expires at this year's end without major changes targeting how the FBI uses foreign surveillance data to investigate Americans.

Democrats who have long demanded new limits on the FBI's access to surveillance have increasingly been joined by Republicans angry about the bureau's investigations of former President Donald Trump as well as errors and omissions made during the probe of Russian ties to his 2016 campaign.

FBI Director Christopher Wray said in a statement that reforms at the bureau had led to “significant improvement” and fewer incidents of not following intelligence rules.

"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," Wray said. "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.”

Patrick Toomey, deputy director of the ACLU’s National Security Project, said in a statement that the latest errors show it is “long past time for Congress to step in.”

"As Congress debates reauthorizing Section 702, these opinions show why that can’t happen without fundamental reforms,” he said.

The surveillance court opinion released Friday didn't disclose the names, states or party affiliations of the people whose names were searched. It said the searches of the state senator and U.S. senator occurred in June 2022. According to the court opinion, the analyst who did the searches had information that a foreign spy service was targeting the lawmakers. But the Justice Department's national security division reviewed the searches and found that they didn't meet FBI standards, the opinion stated.

The state judge's Social Security number was searched that October. It was later determined that the analyst did not have sufficient evidence to conduct the search and did not clear the search with higher-ups as required of politically sensitive searches, according to a senior FBI official who briefed reporters Friday on condition of anonymity under ground rules set by the agency.

The unnamed U.S. senator has been notified of the search, but the state senator and state judge have not, the FBI official said.

The FBI gets a section of foreign surveillance data collected primarily by the National Security Agency, U.S. officials have said. Unlike the NSA and CIA, which go after intelligence targets abroad, the FBI is responsible for investigating threats affecting the U.S. such as cyberattacks or attempts to influence or interfere in American elections.

There are strict rules governing when analysts can search for U.S. citizens or businesses in surveillance data. Facing pressure from the surveillance court and Congress, the FBI in recent years has changed its search tools, ramped up training for analysts working with foreign data, and required new approvals from higher-ups for larger searches or sensitive searches like the names of public officials.

The FBI last month also announced new disciplinary measures. Any employees accused of negligence would immediately lose access to surveillance data until they undergo training and meet with a bureau attorney. The actions revealed Friday predate the new disciplinary policy.

Judge Rudolph Contreras' opinion, which was completed in April 2023 and released Friday with redactions, says “there is reason to believe that the FBI has been doing a better job in applying the querying standard.” Of nearly 80,000 searches audited over a 16-month period ending in December 2022, 1.8% were found to have not met internal standards, the court said.

The total number of searches for Americans appears to have dropped as well. Over a year-long period ending in March, the FBI ran about 180,000 searches of U.S. citizens and other American entities, the court said.

That's well below the roughly 2 million searches reported just between December 2020 and February 2021, something Contreras wrote “should indicate less intrusion into the private communications of U.S. persons.”