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FBI Director Says FISA Section 702 Is Not Unconstitutional

'this is not the time for us to hang up our gloves or take away the tools we need to punch back'

FBI Director Says FISA Section 702 Is Not Unconstitutional

Congressional lawmakers have been wrangling over whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows investigators within the U.S. intelligence apparatus to surveil communications of foreign nationals without a warrant.

Critics have blasted the provision, citing the potential that communications of American citizens could be swept up in data collection and analyzed.

FBI Director Christopher Wray, however, is urging congress to reauthorize FISA, stating that it is vital to national security. He provided reassurances that Section 702 is not unconstitutional and safety protocols within the intelligence community have significantly improved, limiting the potential for abuse.

“They're coming at us with everything they've got,” Wray told attendees at an April 10 luncheon hosted by the American Bar Association, referencing threats from America’s top adversaries, including Iran, China, and Russia.

“So this is not the time for us to hang up our gloves or take away the tools we need to punch back,” Wray stated.

He continued:

Our focus is not only on whether we've got the resources, the money and the right talent to deal with those threats to grow to meet the challenges of the next five, 10 years, but also whether we've got the necessary tools to combat our adversaries.

And one tool that is indispensable to our efforts to combat threats posed by foreign adversaries is one that's going to expire in just a couple weeks if congress does not act. And that's our FISA section 702 [which] allows us to stay a step ahead of foreign actors located outside the United States who pose a threat to our national security. And the expiration of our 702 authorities would be devastating to the FBI's ability to protect Americans from those foreign threats.

In recent days, House Republicans have blocked efforts to have Section 702 reauthorized without changes, such as requiring a warrant before certain data on U.S. citizens in government systems can be searched.

Some lawmakers have said that FISA is unconstitutional and violates the Fourth Amendment.

Wray disagrees.

“Now, contrary to what a lot of folks are saying about the constitutionality and legality of U.S. person queries, the law and the Fourth Amendment simply do not require a warrant in order for the FBI to query 702 data,” he stated. “You don't take my word for it. Multiple federal district courts and appellate courts have considered the issue and no court has ever held that a warrant is required for the FBI to conduct U.S. person queries to blind ourselves from information that's already lawfully in our holdings.”

Wray added that concerns over agents unlawfully spying on American citizens are unfounded, given reforms put in place by the intelligence community to prevent past abuses.

“We've proven that I have been unequivocal, that the compliance incidents we've had in the past are unacceptable. And in response we've undertaken a whole host of reforms to ensure that we are good stewards of this authority,” he said.

“Now, if you look at the compliance reviews conducted by the Foreign Intelligence Surveillance Court and the Department of Justice on queries that were run after we put in place are reforms — let me say that again, the compliance reviews conducted on queries run after we put in place our reforms — [we] have recognized that our reforms have resulted in substantial improvements hitting compliance rates well into the high 90 percent range,” he said. “And we're going to keep looking for ways to push that number even higher.”

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