Leaked FBI email stresses need for warrantless surveillance of Americans

A Federal Bureau of Investigation official recently urged employees to "look for ways" to conduct warrantless surveillance on US residents, an internal email obtained by Wired shows. FBI Deputy Director Paul Abbate's email was reportedly sent on April 20, the same day President Biden signed a bill that was criticized as a major expansion of warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Abbate's email seems to argue that FBI employees should make frequent use of warrantless surveillance on US people in order to justify the continued existence of the program. "To continue to demonstrate why tools like this are essential to our mission, we need to use them, while also holding ourselves accountable for doing so properly and in compliance with legal requirements," Abbate wrote, according to Wired.

Abbate oversees all FBI domestic and international investigative and intelligence activities. His email made reference to a new requirement that FBI personnel obtain prior approval from an FBI supervisor or attorney before making queries about US people.

"I urge everyone to continue to look for ways to appropriately use US person queries to advance the mission, with the added confidence that this new pre-approval requirement will help ensure that those queries are fully compliant with the law," Abbate wrote.

The pre-approval provision in the FISA reauthorization signed by Biden has an exception allowing such queries without prior approval if "the query could assist in mitigating or eliminating a threat to life or serious bodily harm."

The FISA reauthorization was criticized because it expands the definition of an electronic communication service provider, requiring more types of companies to provide the government with information, facilities, and assistance necessary to obtain communications.

“Pushing for more surveillance”

After publication of this article, Ars obtained a copy of the FBI email and confirmed its contents. In addition to the portions quoted by Wired, the email praised Congress for rejecting "an amendment that would have added a so-called 'warrant requirement' for US person queries."

An FBI spokesperson told Wired that Abbate's email "emphasized Congress' recognition of the vital importance of FISA Section 702 to protect the American people and was sent to ensure that FBI personnel were immediately aware of, and in compliance with, the privacy enhancing changes the law has put in place."

US Rep. Zoe Lofgren (D-Calif.) had a different interpretation of the email, telling Wired that it "seems to show that the FBI is actively pushing for more surveillance of Americans, not out of necessity but as a default." Wired also wrote that an FBI statement sent after the article was published "mischaracterized Wired's reporting, inaccurately claiming it 'alleged that that the FBI instructed its employees to violate the law or FBI policies.'"

The FBI today stood by its claim that Wired's reporting was false. "Yesterday's reporting in Wired magazine is a complete misrepresentation of the FBI Deputy Director's email to the FBI workforce. Their allegation that the FBI instructed its employees to violate the law or FBI policies is categorically false and insulting," the FBI said in a statement it provided to Ars today.

When asked to explain this claim, an FBI spokesperson told Ars that the Wired "headline suggested the Deputy urges the use of warrantless wiretaps on US soil, which would be illegal." The Wired story is headlined, "Top FBI Official Urges Agents to Use Warrantless Wiretaps on US Soil." The article itself does not say that the FBI instructed employees to violate the law or FBI policies, but clarifies that under the surveillance program, "at least one of the recipients (the individual 'targeted') [must] be a foreigner reasonably believed to be somewhere other than on US soil."

The Senate passed the FISA reauthorization bill 60-34 despite some notable opposition. "Forcing ordinary Americans and small businesses to conduct secret, warrantless spying is what authoritarian countries do, not democracies," Sen. Ron Wyden (D-Ore.) said.

Sen. Ted Cruz (R-Texas) said he voted against the reauthorization "because it failed to include the most important requirement to protect Americans' civil rights: that law enforcement get a warrant before targeting a US citizen."

Section 702 authorizes electronic surveillance of non-US people overseas, and messages sent by US people to foreigners can be collected in the process. The official summary of the reauthorization bill noted that "information about US persons may incidentally be acquired by this type of surveillance and subsequently searched or 'queried' under certain circumstances."

This story was updated to add the FBI's statement to Ars.