Warrantless surveillance of Americans has been in the news lately, but the FBI says its surveillance of Americans dropped by roughly 50% in 2023.

Section 702 of the Foreign Intelligence Surveillance Act was recently reauthorized and expanded, widening the scope of individuals and professions that can be pressed into helping authorities surveil others. Despite the reauthorization, the FBI says warrantless surveillance of Americans is down significantly in its Annual Statistical Transparency Report.

The FBI says the number of US person queries in the period from November 2022 to December 2023, dropped to 57,094. In contrast, the previous year saw 119,383 queries, and the year before that saw 2,964,643. The FBI says its figures are almost certainly over-counted as a result of how the FBI counts queries:

While the FBI’s methodology closely matches that used by other IC elements, it still is almost certainly
an overcount with respect to queries that are part of batch jobs. This is because, as indicated elsewhere
in this report, if even one query term in a batch job is identified by a user as a U.S. person query term
and labeled as such, FBI systems apply the U.S. person label to every query term in that batch. The FBI’s
counting methodology does not correct for this type of over-counting.

The FBI also says the variance in queries from one year to the next based on the investigations being conducted. For example, in the first half of 2021, there were a large number of queries related to a single investigation pertaining to foreign actors trying to launch cyberattacks on US critical infrastructure. This accounted for 1.9 million of the 2,964,643 queries in that period.

Interestingly, the FBI acknowledges that it uses the data it queries reasons other than its intended purpose, to foil and catch terrorists.

As noted above, FBI is the only intelligence agency with Section 702 querying procedures that allow for
queries that are reasonably likely to retrieve evidence of a crime, in addition to queries that are reasonably
likely to return foreign intelligence information. Recognizing that unrelated crimes can be discovered in
the course of conducting FISA activities, Congress required that FISA minimization procedures contain
provisions addressing how to treat evidence of unrelated crimes acquired in the course of a foreign intelligence activity….There are also instances where the FISA-derived information
sought is both relevant to foreign intelligence information and a criminal act (e.g., information relating
to international terrorism).

In recent years, both Congress and the FISC have focused particular attention on instances in which
FBI’s purpose at the time of the query is solely to retrieve evidence of a crime and that are not designed
to retrieve foreign intelligence information. There are two specific requirements related to these queries:
(1) a statutory requirement for FBI to obtain a court order to review the results of certain evidence of
a crime-only queries related to a predicated criminal investigation and (2) a FISC quarterly reporting
requirement to provide the number of U.S. person evidence of a crime-only queries that resulted in
content review, whether or not they are associated with a predicated criminal investigation. Both are
explained below with corresponding statistics.

This is at the heart of issue critics have with Section 702, namely that it allows law enforcement to mine data collected expressly for intelligence gathering to be used in investigations completely unrelated to national security.

As the FBI highlights, some measures have been put in place to regulate these instances, but evidence consistently shows that the FBI has played fast and loose with its access to this data. The Electronic Frontier Foundation (EFF), citing the FBI’s own internal documents, outlines the abuses that continue to occur:

Despite reassurances from the intelligence community about its “culture of compliance,” these documents depict almost no substantial consideration of privacy or civil liberties. They also suggest that in the years before these guidelines were written, even amidst widespread FBI misuse of the databases to search for Americans’ communications, there were even fewer written guidelines governing their use. Above all, FBI agents can still search for and read Americans’ private communications collected under Section 702, all without a warrant or judicial oversight.

The EFF minces no words in its description of Section 702:

Section 702 has become something Congress never intended: a domestic spying tool. Congress should consider ending the program entirely, but certainly not reauthorize Section 702 without critical reforms, including true accountability and oversight.

While critics will no doubt be happy to see the number of US persons queries dropped significantly in 2023, most will not be satisfied until the FBI and law enforcement is required to get a warrant to access and use the data collected on Americans.