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Intel Agencies Massively Undercounted Searches On Americans Under FISA Surveillance Rule

U.S. intelligence agencies undercounted the number of searches conducted on Americans through a controversial warrantless search law by 4,185, about one-third of the actual total, in 2018, according to a report released Friday.

Foreign Intelligence Surveillance Act (FISA) Section 702 allows U.S. intelligence agencies gathering data on Americans without a warrant as a consequence of surveilling foreign “targets” abroad, conducting several thousand searches each year. The Office of the Director of National Intelligence (ODNI) discovered “previously unrecognized counting errors” on the number of searches, or “queries,” conducted under Section 702 going back to 2017, according to the office’s 2022 annual transparency report on the Intelligence Community’s use of FISA authorities.

Previous reports recorded 9,707 so-called “queries” of Americans in 2018, but rectifying the counting error brought the number to 13,892, according to the report. There is not a one-to-one correlation between queries and individuals targeted; multiple searches may be conducted implicating a single person.

The National Security Agency (NSA) “engaged in a thorough search to identify any previously unreported U.S. person query terms,” the report stated.

Errors included “approved U.S. person query terms that had been under-counted as a consequence of their classification and training for new personnel” as well as “approved U.S. person query terms that had been over-counted as a result of NSA’s counting methodology,” the report found.

Other years recorded smaller over or under-counts; the National Security Agency, which conducts queries along with the FBI, found that it overcounted the number by 830 in 2017, 77 in 2019 and 384 in 2021, while it undercounted by 64 in 2020.

The number of non-U.S. persons targeted under Section 702 rose from 232,432 in 2021 to 246,073 in 2022, which is in keeping with past trends, according to the report.

Overall, intelligence agencies conducted 4,684 queries on U.S. persons in 2022, down from 8,406 in 2021 and 7,282 in 2020, according to the report. In addition, agencies gathered metadata (referred to as “non-contents”) on U.S. persons with 3,656 queries.

Under Section 702, the Attorney General and the DNI must vet requests from NSA and the FBI to target foreign individuals of intelligence value located abroad, and are required to disclose searches conducted on Americans.

Intelligence and Justice Department leaders argue that Section 702 is non-negotiable for intelligence agencies to fulfill their national security mission while emphasizing their commitment to safeguarding Americans’ privacy rights.

“This authority, which allows NSA to collect intelligence on non-U.S. persons located oversees that use U.S. communications infrastructure, is vital to keeping the nation safe,” NSA Director Gen. Paul Nakasone told Congress on Thursday.

However, many privacy advocates are concerned about what they see as overreach, particularly by the FBI, through incidental collection and queries, which critics refer to as “backdoor searches,” Sharon Bradford Franklin, chair of the Privacy and Civil Liberties Oversight Board, said in testimony to Congress on Thursday.

Michael Horowitz, the Department of Justice’s inspector general, told Congress that the FBI “fell far short of these standards” in connection to FISA applications for Carter Page, a former Trump campaign official at the heart of the Russian collusion allegations.

The powerful surveillance tool is set to sunset on Dec. 31, and Congress will face a vote to reauthorize the rule.

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