The White House released a report on Monday recommending that a controversial law allowing the government to spy on foreign nationals be renewed, as the FBI has faced heightened scrutiny in recent weeks for using the law to spy on Americans.
The 42-page report, published by the President’s Intelligence Advisory Board and Intelligence Oversight Board, stated that not renewing Section 702 of the Foreign Intelligence Surveillance Act (FISA) could be “one of the worst intelligence failures of our time”.
The legislation permits the US government to collect digital communications of foreigners located outside the United States.
The law is set to expire at the end of this year unless it is reauthorised and some lawmakers, both Democrat and Republican, are calling for major reforms out of concern that Section 702 has been used against Americans.
A 2021 Justice Department audit of the FBI’s use of Section 702 found that some “noncompliant queries included individuals arrested during the January 6 Capitol breach”, the 2021 protest by supporters of then-President Donald Trump.
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Publicly revealed court records earlier this month revealed that the FBI used Section 702 to conduct searches on a US senator, state lawmaker and a state judge, despite the law only giving permission to surveil non-US citizens.
“FBI’s use of Section 702 should be limited to foreign intelligence purposes only and FBI personnel should receive additional training on what foreign intelligence entails,” the review said.
The review found that while there were no instances of the FBI willfully misusing Section 702, the “FBI’s conduct has nevertheless undermined public confidence in its ability to use Section 702 in the way it was intended”.
FBI’s use of spyware
FISA was first enacted in 1978, outlining the powers that the US government has to gather intelligence on domestic soil. Following the 11 September 2001 attacks, Section 702 of FISA was created, giving government agencies the authority to gather intelligence on foreign nationals.
The legislation allows US intelligence agencies to collect the electronic communications of foreign nationals believed to be outside the country for the purposes of addressing national security concerns.
However, civil liberties groups in the US have said that in the process of obtaining these communications, the emails, phone calls and text messages of Americans have also been taken as well.
While there is not much specificity known as to who is targeted by the US government’s surveillance, leaked documents over several decades have shown prominent Muslim Americans to be the victims of such surveillance.
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While the scrutiny over the FBI’s use of Section 702 has been restricted to the spying of Americans, the federal agency has also faced pushback over the use of contentious spyware technologies, including from the blacklisted Israeli spyware maker NSO.
In February, the FBI confirmed it had procured a limited license for NSO’s Pegasus software in order to “stay abreast of emerging technologies and tradecraft”.
In 2021, Amnesty International, Forbidden Stories and a consortium of international media organisations revealed the spyware had been used in hacking smartphones belonging to journalists, officials, human rights activists and world leaders.
In April, The New York Times revealed that US President Joe Biden’s administration had obtained another of NSO’s technologies, a geolocation tool called Landmark that allows its user to covertly track a device’s location. The tool gave Washington the ability to spy on targets in Mexico, according to the newspaper.
On Monday, The New York Times revealed that an investigation by the FBI revealed that it was the FBI itself that was using the spyware.