Reversing Trend, 2022 Saw Small Uptick in National Security Surveillance in U.S.

A new report also said the F.B.I. is also changing how it measures queries for information about Americans in a repository of messages intercepted without a warrant.

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Reversing Trend, 2022 Saw Small Uptick in National Security Surveillance in U.S. |

The Office of the Director of National Intelligence began issuing annual reports about its use of surveillance powers following the 2013 leaks by Edward J. Snowden.

WASHINGTON — Court-approved surveillance targeting people on domestic soil for national security purposes ticked up slightly last year after dipping for three straight years amid factors like the coronavirus, the decline of the Islamic State and President Donald J. Trump’s attacks on the F.B.I., according to a report released on Friday.

There were 417 targets of court-approved wiretaps and physical search orders under the Foreign Intelligence Surveillance Act in 2022, according to the report, issued by the Office of the Director of National Intelligence. That was up from 376 in 2021.

Notably, however, the number of American citizens and permanent residents targeted by such orders continued to fall in 2022 — to 49, down from 67. The overall increase came entirely from a rise in targeting other kinds of foreigners on domestic soil. The total also remained well below its peak of 1,833 targets in 2018.

The Office of the Director of National Intelligence began issuing annual reports about its use of surveillance powers in 2014, after the leak by a former contractor for the National Security Agency, Edward J. Snowden. His disclosures prompted a broad debate about the scope and limits of the government monitoring communications and data for security reasons.

The report this year comes as Congress decides whether to reauthorize a different surveillance law known as Section 702, which is set to expire at the end of 2023. It allows the government, without a warrant, to collect from American companies like Google and AT&T messages of targeted foreigners abroad — even when they are talking with Americans.

The number of foreign targets of Section 702 surveillance has climbed steadily since the government began disclosing statistics about the program’s use, and reached a new high last year at 246,073 — up from 232,432 in 2021.

While the National Security Agency carries out Section 702 surveillance, the F.B.I. receives copies of the raw messages and data that relate to its investigations — about 3.2 percent of the targets as of February, the report said.

A recurring point of contention about Section 702 has been repeated findings that F.B.I. agents violated rules limiting when they may query the repository of messages gathered from foreigners abroad for information about Americans.

As part of any reauthorization legislation, proponents of reform hope to impose new limits on the program, including by requiring the government to obtain a warrant before carrying out such queries.

Senator Ron Wyden, an Oregon Democrat who advocates tightening rules on surveillance, said in a statement that the report “highlights the urgent need for reforms to government surveillance programs in order to protect the rights of law-abiding Americans.”

In 2021 and 2022, the F.B.I. tightened various rules and modified its systems, leading to a significant drop in the number of queries for information about Americans. One change was to require agents to have a specific reason to believe that relevant information about foreign intelligence or a crime would be in the repository before querying it.

Last month, the F.B.I. disclosed that there had been 204,090 queries for information about Americans in 2022, down 93 percent from about 3.4 million in 2021.

The report also said the F.B.I. is changing how it measures such queries and will screen out duplicates — the practice of recounting multiple queries using the same identifier. Under the new methodology, the report said, the F.B.I. made 119,383 such queries for information about Americans in 2022, down from nearly three million in 2021.

In 2018, the last time Section 702 was about to lapse, Congress imposed a limited requirement that the government obtain a court order before reviewing the results of any query for information about Americans for an existing criminal investigation.

The government has never used that authority and again sought no such orders in 2021, the report said. But in one instance, an analyst failed to comply with the rule, improperly viewing the results of a such a query without obtaining a warrant.

In a briefing for reporters, a law enforcement official said that analyst conducted the query on behalf of another field office and did not realize that there was an open criminal investigation.

The report also showed that analysts continue to use a law that has since lapsed. Congress did not reauthorize the law, known as Section 215 of the Patriot Act in 2020, which allowed the F.B.I. to get a court order for business records in a national security investigation. But the government still uses it regardless.

The government can use the authority even though it has lapsed because of how Congress wrote Section 215. It essentially remains available for investigations that already existed when it expired. The F.B.I., for example, has had longstanding investigations into adversaries like Al Qaeda and Chinese and Russian intelligence agencies, where it can keep using the law

In 2022, the report said, the government obtained 11 such orders, the same as it did in 2021. Notably, however, the number of “unique identifiers used to communicate information” like phone numbers or email addresses the F.B.I. learned about from those records increased significantly — to 55,431 in 2022, up from 23,157 in 2021 and 7,654 in 2020.

In his statement, Mr. Wyden suggested that practice may become unsustainable.

“If the government wants to use the exception for investigations that preceded that sunset to dramatically increase collection, it should come back to Congress where reforms of the authority can be debated,” he said.


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