FBI Director Wray Makes Case on Hill Against FISA Warrant Requirement

Creating a domestic warrant requirement for the FBI’s foreign intelligence surveillance authority would “paralyze” efforts to thwart “fast-moving threats” abroad, FBI Director Christopher Wray told the Senate Judiciary Committee on Tuesday.

Lawmakers are debating whether to reauthorize the Foreign Intelligence Surveillance Act with changes like a warrant requirement for Section 702 (see 2312010036). Senate Judiciary Committee Chairman Dick Durbin, D-Ill.; ranking member Lindsey Graham, R-S.C.; Amy Klobuchar, D-Minn.; and John Cornyn, R-Texas, spoke of the need to extend FISA before it expires Dec. 31. Sen. Mike Lee, R-Utah, hammered Wray about the agency’s documented abuses, including instances where officials spied on U.S. citizens for personal gain.

The most recent declassified reports, from the FISA court and DOJ, show the FBI is operating at a 98% compliance rate under Section 702, said Wray. Allowing 702 to lapse or to amend it in a way that undermines its effectiveness would be “akin” to “laying bricks” for another pre-9/11 wall, he said, stopping law enforcement from investigating national security threats.

State-sponsored terrorists in Iran, China and Russia aren’t tying their hands behind their backs in the way the U.S. is considering doing with some of the FISA proposals, Wray said. In the past “couple years” Iran has attempted assassinating a former U.S. national security adviser, kidnapping a U.S. journalist in New York City and conducting a cyberattack on a New England children’s hospital, Wray noted, adding Section 702 is an “indispensable” tool for combating foreign targets.

Yet Lee said the FBI has repeatedly shown it can’t be trusted, and there’s no evidence a warrant requirement for domestic data would impede investigations. He cited several instances of abuse, including noncompliant queries of U.S. protesters and members of Congress. A declassified report from August 2021 showed an FBI analyst gathered information to determine whether his father was having an affair, Lee noted. The Privacy and Civil Liberties Oversight Board’s 2023 report detailed how an FBI analyst queried a U.S. citizen who was a potential tenant of a rental property owned by another analyst. An incident in 2022 involved an NSA analyst querying information about two people he met through online dating apps. Lee asked Wray if any of these staffers were fired or had their security clearances revoked. Wray said he was unaware of specifics regarding discipline in these cases. Disciplinary action is far-ranging based on the violation, Wray said.

Wray noted that no court has deemed Section 702 unconstitutional. That’s because potential victims are unaware when they’re being surveilled, Lee responded: “How lucky for you. No one knows when they’re being surveilled. That is not an argument, sir.”

Wray’s suggestion that a warrant requirement for U.S. citizens would amount to “some sort of unilateral disarmament” is “disgraceful,” said Lee. “The Fourth Amendment requires more than that, and you know it.”

Sen. Chris Coons, D-Del., who has not supported FISA reauthorization, said he’s now on the fence given the FBI’s reforms and potential proposals from lawmakers. Bipartisan legislation from the Senate Intelligence Committee would require a court order for U.S.-person queries designed to find evidence of a crime, but foreign intelligence gathering would remain warrantless. Coons asked Wray if this proposal would appease him. Wray told Coons the FBI is willing to discuss the bill from Sens. Mark Warner, D-Va., and Marco Rubio, R-Fla., and that it provides a potential path forward.

“There’s no question” Section 702 is a “critical tool” for gathering information, but concerns remain regarding the protection of “communications of innocent Americans from warrantless searches,” said Durbin, who traveled to DOJ headquarters for a FISA program briefing on Monday. Durbin asked Wray to discuss the importance of surveillance powers in cases of child sex abuse material.

Social media platforms are increasingly relying on warrant-proof methods of data encryption, which allows child abuse to take place in the dark, said Wray: The companies are “effectively blinding themselves to abuse.” Klobuchar spoke of a “massive increase” in sextortion cases involving children and teens. In 2020, these types of scams resulted in at least 20 suicides, she said. Klobuchar plans to go to the Senate floor and seek a vote on legislation she introduced with Cornyn that would update laws on revenge porn and sextortion (see 2305110048).