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Release of 2023 Foreign Intelligence Surveillance Court Opinion Highlights FBI's Improved Section 702 Query Compliance — FBI [1]

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Date: 2023-07

The Intelligence Community today released, in redacted form, the April 2023 Opinion of the Foreign Intelligence Surveillance Court (FISC), which highlights that the remedial measures the FBI began implementing in 2021 and 2022 are working to improve the FBI’s Section 702 query compliance. The 2023 Opinion also demonstrates the effectiveness of the FISC’s oversight responsibilities, as well as the FBI’s commitment to full compliance.



"The 2023 FISC Opinion confirms the significant improvement in the FBI’s Section 702 querying compliance since the implementation of our substantial reforms," said FBI Director Christopher Wray. "Section 702 is critical in our fight against foreign adversaries. We take seriously our role in protecting national security and we take just as seriously our responsibility to be good stewards of our Section 702 authorities. Compliance is an ongoing endeavor, and we recently announced new additional accountability measures. We will continue to focus on using our Section 702 authorities to protect American lives and keeping our Homeland safe, while safeguarding civil rights and liberties."



The 2023 FISC Opinion released today, which reviewed activity after the 2021/2022 reforms were implemented, highlights how the FBI’s reforms have contributed to significant improvements, saying there were "further indications that the measures are having the desired effect." Notably, the Court calculated the FBI’s compliance rate with the querying standard to be over 98% after these reforms were implemented.



The FISC acknowledged it was encouraged by the reforms and it "anticipated that the new default settings ‘should eliminate non-compliance stemming from inadvertent querying’ of such information." The Court also "noted 'preliminary indications' that such changes were 'resulting in substantial reductions in the number of U.S.-person queries.'"



While the Opinion cited incidents of noncompliance with the FBI’s Sensitive Query Policy and Querying Procedures—as well as compliance incidents that were previously disclosed in the FISC’s previously released 2022 Opinion—the Court nonetheless determined that, "Despite the reported errors, there is reason to believe that the FBI has been doing a better job in applying the query standard."



Additionally, in the time since these incidents occurred, the FBI has implemented new FISA query accountability measures with escalating consequences for negligent conduct to further deter the kinds of compliance incidents cited by the Court.



Most notably, the Court concluded that, "Given recent indications that the FBI is improving its implementation of Section 702 querying requirements, the Court finds that the FBI’s querying and minimization procedures, taken as a whole and as likely to be implemented, are consistent with the requirements of the statute and the Fourth Amendment."



FISA Section 702 is an indispensable tool in the FBI’s efforts to protect against national security threats. It authorizes the targeted collection of foreign intelligence information from non-U.S. persons located abroad. Section 702 will expire on December 31, 2023, unless Congress takes action to reauthorize it.



The FBI is responsible for upholding the Constitution and protecting Americans, including their privacy and civil liberties. Section 702 authorities are crucial to fulfilling our mission, but the FBI acknowledges that noncompliance is unacceptable. Continued improvement to 702 querying standards is vital to maintaining public trust, and the FBI is committed to taking effective measures to ensure compliance.

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[1] Url: https://www.fbi.gov/news/press-releases/release-of-2023-foreign-intelligence-surveillance-court-opinion-highlights-fbis-improved-section-702-query-compliance

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