Intelligence data shows sharp increase in warrantless surveillance abroad

Court-approved warrants for domestic surveillance declined for the fourth straight year and warrantless surveillance of foreigners reached an all-time high, according to new figures provided by the intelligence community.

The data, released annually by the Office for the Director of National Intelligence, breaks down queries of spy agencies’ use of various surveillance privileges.

In 2021, courts approved warrants for wiretaps or physical searches against 376 targets under the Foreign Intelligence Surveillance Act (FISA), a drop from the 451 served last year. The bulk, 309, were directed at those on U.S. soil who are neither citizens nor permanent residents.

“The Covid-19 pandemic likely influenced target behavior — as it did last year — and those changes were one of the factors influencing the numbers this year,” Benjamin Huebner, the chief civil liberties, privacy and transparency officer, said in a call with reporters, according to The New York Times. 

He added that the drop could also be partly attributed “to the changing nature of the threat from certain international terrorism groups during this time period.”

But privacy advocates expressed concern over a significant uptick in the number of warrantless searches allowed under Section 702 of FISA, which permits intelligence agencies to surveil foreigners outside the U.S. who use U.S.-based products like Google without first getting a court’s approval.

In 2021, there were 232,432 targets under Section 702, surpassing the previous high of just shy of 205,000 in 2019.

This year, however, at least 3 million Americans’ identifiers were queried by the FBI in the process.

The report claims the figure is less than 3.4 million, its inexactness owed to the complications of the searches. Queries for just one person or target could use multiple identifiers, with each counting toward the 3.4 million figure.

“For anyone outside the U.S. government, the astronomical number of FBI searches of Americans’ communications is either highly alarming or entirely meaningless,” Sen. Ron Wyden (D-Ore.) said in a statement.

“Somewhere in all that over-counting are real numbers of FBI searches, for content and for noncontent — numbers that Congress and the American people need before Section 702 is reauthorized. The FBI must also be transparent about the particular circumstances in which it conducted a staggering 1.9 million additional queries in 2021,” he said.

“Finally, the public deserves to know whether the FBI has fully addressed the extensive abuses of its 702 search authorities that have been documented for years. Baseline transparency is essential if the federal government wants to hold such sweeping surveillance powers.” 

The American Civil Liberties Union (ACLU) said the broad searches violate constitutional protections against unwarranted searches and seizures. 

“FBI agents are collecting and then searching through Americans’ international emails, text messages and other communications on an enormous scale—all without a warrant. Today’s report sheds light on the extent of these unconstitutional ‘backdoor searches,’ and underscores the urgency of the problem,” Ashley Gorski, senior staff attorney with the ACLU National Security Project, said in a statement.

“It’s past time for Congress to step in to protect Americans’ Fourth Amendment rights.”