DOJ Report Highlights Disagreements Between FBI, DOJ on Key FISA Processes and Principles

October 3, 2022

A report from the Department of Justice (DOJ) Inspector General (IG) revealed that the FBI conducted queries of data collected under foreign intelligence surveillance authorities that oversight officials within the DOJ believed were not permissible. According to the IG report, the FBI’s Office of the General Counsel (OGC) and the Department of Justice’s National Security Division (NSD) often disagreed over basic definitions under the Foreign Intelligence Surveillance Act (FISA), and poor communication between the two agencies also resulted in substantial delays in reporting noncompliance to the Foreign Intelligence Surveillance Court (FISC).

The report found that the FBI and DOJ disagreed over the proper querying standard under Section 702, with a senior NSD official stating that the FBI took a much broader approach to querying due to “a fundamental misunderstanding of the standard.” Even after working to align the standards, the FBI continued to press—without success—for the use of Section 702 querying in vetting potential confidential informants, even where there was no basis to believe that the subject had criminal intent or was a threat to national security.

The report also found that the FBI and DOJ disagreed over what constitutes a “material” fact that would trigger the government’s obligation to submit a notice to the FISC under Rule 13 of the FISC Rules of Procedure, thereby delaying the government’s reporting of noncompliance. According to the IG report, the FBI had incorrectly interpreted this standard to mean solely those facts that are outcome determinative, rather than any fact capable of influencing the outcome.

EPIC has long advocated for a prohibition on warrantless “backdoor” searches via Section 702-acquired information. In EPIC v. NSD, EPIC obtained a report containing important information about the FBI’s current use of Section 702 authority. EPIC closely tracks the use of FISA authority.

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