In 2021 and 2022, the FBI conducted thousands of inquiries on digital data acquired on American citizens, despite not having a warrant or justification under its own regulations, according to an internal study published on May 10.

The FBI Office of Internal Auditing (OIA) conducted the audit to examine the agency’s adherence to the Section 702 of the Foreign Intelligence Surveillance Act of 1978 (FISA) guidelines for querying the data that the government routinely collects on American residents.

Even if the communications involve a U.S. citizen, the Foreign Intelligence Surveillance Act (FISA) allows the government to collect electronic data, such as phone calls, text messages, and emails, from foreigners residing abroad. These data will then be searchable by American authorities investigating matters of national security.

Any data inquiry involving a U.S. citizen is subject to the FISA court’s approved guidelines, which contain three requirements.

It must be justified by a specific factual basis indicating that it is likely to retrieve foreign intelligence information or evidence of a crime, be for the purpose of retrieving foreign intelligence information or evidence of a crime, be reasonably designed to avoid retrieving information unrelated to the purpose, and comply with additional requirements.

Between July 1, 2021 and March 31, 2022, 4 percent of FISA data searches were unable to meet these requirements, according to the report. Providing an insufficient rationale for the search was the most common cause of failure.

According to a distinct FBI report, the FBI conducted more than 204000 searches of FISA data on Americans in 2022. Given a noncompliance rate of 4%, the FBI would have accessed the digital communications of American citizens more than 8,000 times without a warrant or adequate explanation in accordance with the FISA Court’s guidelines.

Following the implementation of new FISA query procedures in 2021 and 2022 by FBI Director Christopher Wray, an audit was conducted.

Following the discovery of “widespread violations” of the law by the FISA Court, the agency has been criticized. Investigating the correspondence of members of Congress, journalists, political commentators, and government officials was among these offenses.

In response to the Nixon administration’s similarly unauthorized surveillance of American citizens, FISA was established.

Contrast this audit with one conducted between April 1, 2020 and March 31, 2021, which revealed an 18% rate of noncompliance.

In 2021, the FBI submitted approximately 3.4 million FISA requests involving Americans. With an 18% noncompliance rate, the FBI illegally obtained the electronic communications of American citizens 612,000 times in that single year.

Although the number of FISA requests decreased considerably and the FBI’s rate of compliance increased, some privacy advocates were not satisfied with the shift.

“Even if the compliance rate were 100 percent, the government should not be able to access Americans’ communications without a warrant,” tweeted Elizabeth Goitein, co-director of the Brennan Center for Justice’s Liberty and National Security Program.

“But with a baseline of 8,000 violations per year, there can be no question that a warrant is needed to protect Americans’ fundamental rights.”

In light of the audit findings, the OIA suggested additional adjustments to the FISA data querying protocols. Among these are modifying the system to alert users when they input data incorrectly, requiring all users to complete required training before gaining access to raw FISA data, and enhancing the FISA query compliance monitoring program.

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