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The FBI’s surveillance authorities under Section 702 of the Foreign Intelligence Surveillance Act are indispensable to the Bureau’s efforts to combat threats from foreign adversaries, Director Christopher Wray said on April 9.
But, he said, requiring the Bureau to obtain a warrant to query its database of information collected under its Section 702 authorities would hinder the FBI’s ability to obtain and act upon threat intelligence and—by extension—to prevent potential terrorist or cyber-facilitated attacks against the homeland.
“If there’s no constitutional, legal, or compliance necessity for a warrant requirement, then Congress would be making a policy choice to require us to blind ourselves to intelligence in our holdings,” Wray told the American Bar Association’s Standing Committee on Law and National Security in Washington, D.C. Implementing such a requirement would have “real-world consequences” on the Bureau’s ability to disrupt terrorist and cybersecurity threats and “protect the American people,” he added.
Such a requirement would also impede our ability to quickly reach victims of cyber incidents, since U.S.-persons queries help power those timely notifications.
The Importance of U.S.-Persons Queries
According to Wray, U.S.-persons queries are usually conducted in the early stages of an investigation—when it’s usually still too early to “establish probable cause or demonstrate” urgency.
These queries can help the FBI connect the dots between bad actors and their intended targets—or between bad actors and their criminal networks—so the Bureau can prevent attacks before they happen.
And since every second counts when you’re racing to outpace a threat, any potential delay in obtaining threat intelligence could potentially cost lives.
For example, in 2023, the FBI was able to prevent a potential attack on U.S. critical infrastructure by a U.S. person who’d done relevant research and preparation and who’d been in touch with a foreign terrorist, Wray said. “Only by querying that U.S. person’s identifiers in our 702 collection did we find important intelligence on the seriousness and urgency of the threat,” he explained.
Wray said the FBI was able to disrupt the would-be attacker less than a month after it conducted its first Section 702 query related to that subject. But, he noted, this query would’ve been impossible if a warrant requirement had been in place due to probable cause and exigency. “And if we hadn’t done that query, we would’ve lost valuable time we needed to get ahead of the potential attack,” he said.
The Bureau’s ability to run U.S.-persons queries also allowed us to gain awareness that Chinese hackers had compromised a U.S. transportation hub’s network and flag the intrusion to hub personnel so they could respond, Wray said.
“Who knows how much damage those hackers could have caused—not just monetarily, but in the disruption and even the safety of Americans’ lives,” Wray said. “Effective and prompt victim notifications like those hinge on our ability to conduct U.S.-person queries of our existing 702 collection.”
Addressing Legal and Compliance Questions
Neither the Fourth Amendment, nor the law, require the FBI to obtain a warrant before it can run a search against data collected under our Section 702 authorities, Wray added.
“Multiple federal district courts and appellate courts have considered the issue, and no court has ever held that a warrant is required for the FBI to conduct U.S.-person queries—to blind ourselves from information already lawfully in our holdings,” he said. “And when the Foreign Intelligence Surveillance Court renews the 702 program every year, not once has it found that the law requires a warrant to conduct U.S.-person queries.”
He also stressed that a warrant requirement isn’t necessary to ensure that the FBI follows the law when it runs Section 702 queries. “We’ve proven that I’ve been unequivocal that the compliance incidents we’ve had in the past are unacceptable,” he said. “And in response, we’ve undertaken a whole host of reforms to ensure that we’re good stewards of this authority.”
Both the U.S. Department of Justice and the Foreign Intelligence Surveillance Court “have recognized that our reforms have resulted in substantial compliance improvements, hitting compliance rates well into the high 90% range,” he noted, adding that the FBI will continue to brainstorm ways to further improve those rates.
Finally, he noted said that lawyers are critical to helping the general public make sense of law, policy, and the definition of a warrant, “and to help illuminate the consequences of purposefully choosing to limit the American Intelligence Community from accessing key and timely information about our foreign adversaries.”
