Bipartisan Group Demands End to FBI’s Backdoor, Warrantless Searches

Congress must end the intelligence community’s practice of doing warrantless searches of American phone calls, texts and emails, said Reps. Warren Davidson, R-Ohio; Pramila Jayapal, D-Wash.; and Zoe Lofgren, D-Calif., in separate remarks Wednesday.

Lofgren, during a Demand Progress event, noted FBI Director Christopher Wray admitted to the Senate Intelligence Committee last week that the FBI has purchased Americans’ location data without court orders in the past. She said the bureau did some 3.4 million backdoor searches in 2021, which allegedly swept in conversations from members of Congress, including Rep. Darin LaHood, R-Ill. LaHood, a member of the House Permanent Select Committee on Intelligence, said last week he believes he was the subject of “improper” FBI queries authorized under Foreign Intelligence Surveillance Act (FISA) Section 702.

Privacy is at risk as long as Section 702 remains unchanged, said Lofgren. This year’s FISA reauthorization offers a “critical opportunity” to address this threat, she said, noting the “growing bipartisan consensus” on the need to amend Section 702 and FISA as a whole. Lofgren said she will work as co-chair of the Fourth Amendment Caucus to continue building a bipartisan coalition to demand “meaningful reforms.” The goal is to put an end to warrantless, backdoor searches and close loopholes that allow the government to buy consumers’ sensitive information from data brokers without court oversight, she said. Such practices violate the Constitution, she said.

Section 702 activity and “claims of inherent executive authority remain a threat to Americans’ constitutional right to privacy,” said Jayapal and Davidson in a joint statement Wednesday. They claimed the FBI is continuing to do backdoor searches at “an alarming scale.” They credited members of the House Permanent Select Committee on Intelligence for agreeing a “clean reauthorization” of Section 702 is a “non-starter.” They said Congress “must take this opportunity to reform Section 702 and overhaul privacy protections for Americans so that they truly protect the civil rights, civil liberties, and privacy rights that are foundational to our democracy.” Demand Progress Senior Policy Counsel Sean Vitka called FISA reform perhaps the “most bipartisan issue in America.”

Sen. Ron Wyden, D-Ore., asked Wray directly last week if the FBI bought geolocation data derived from American consumers’ phones. Wray replied: “To my knowledge,” the FBI doesn’t currently buy commercial database information, including location data derived from internet advertising. The agency previously bought “some such information for a specific national security pilot project,” which has been inactive “for some time,” said Wray. When the FBI uses adtech location data, it’s through a court-authorized process, said Wray. The FBI currently has no plans to resume buying location data without a court order, he said.