Cybersecurity Policy Report, FBI Shouldn’t Need Warrants to Access FISA Data, Patel Says, (Jan 31, 2025)
Kash Patel, President Trump’s nominee to be director of the Federal Bureau of Investigation, yesterday expressed opposition to a change in a federal foreign surveillance law favored by many civil liberties advocates.
During a confirmation hearing, Mr. Patel told the Senate Judiciary Committee that he didn’t think the FBI should be required to get a probable-cause warrant before searching through data collected under section 702 of the Foreign Intelligence Surveillance Act (FISA).
Section 702 empowers U.S. intelligence agencies to monitor the communications of foreigners who are overseas and considered national security threats. In practice, however, the use of section 702 sometimes leads to Americans’ communications being swept up when an American communicates with a foreign intelligence target, and the FBI is allowed to access those communications in a practice that civil liberties advocates describe as “warrantless surveillance.”
Asked by Sen. John Cornyn (R., Texas) whether a warrant requirement should be added to section 702, Mr. Patel suggested that such a requirement would hamper the FBI’s ability to quickly find connections between foreign threat actors and individuals in the U.S.
“Having a warrant requirement to go through that information in real time is just not comportive with the requirement to protect American citizens,” he said.
“The issue for me is not with FISA and 702. The issue is those who have been in government service and have abused it in the past. So we must work with Congress to provide the protections necessary for American citizens,” he added.
He agreed with Sen. Cornyn that Congress’ recent reauthorization of section 702 included much-needed privacy-enhancing reforms (CPR, April 22, 2024).
“I’m open to working with Congress to find a better way forward, but right now these improvements that you’ve made go a long way,” Mr. Patel told the committee.
But Sen. Mike Lee (R., Utah) disagreed that section 702 reforms had gone far enough and challenged the relevance of Mr. Patel’s view that warrants would slow efforts to find terrorist connections in the U.S. during emergency situations.
“In real time it might not work to get a warrant. This, in my view, misses the point,” Sen. Lee told Mr. Patel.
“The concern that the American people have with FISA 702 is not about the real-time collection of communications regarding foreign targets. The concern is that once those communications are stored ... [authorities] routinely access them without getting a warrant.”
The FBI has its own “internal procedures” for accessing Americans’ data collected under section 702, Sen. Lee noted, but often sidesteps those procedures.
“They’re not supposed to use it for light or transient reasons. They’re supposed to have a perfectly good reason. And yet, we’ve found that on hundreds of thousands of occasions, they’ve accessed the private communications of Americans,” he said.
Mr. Patel agreed that section 702 had been misused in the past and, despite being at odds with Sen. Lee’s support of warrants, was praised by Sen. Lee for acknowledging that the FBI needed to be more careful in its use of section 702.
“You’re the very first FBI director or FBI director nominee who, when I’ve asked about this, hasn’t said, ‘Don’t worry about it. We’ll handle it OK. We’ve got good people on the inside. We would never breach the trust of the American people.’ You know what? They were lying,” Sen. Lee said.
Mr. Patel’s views about section 702 differed from those expressed by Tulsi Gabbard, President Trump’s nominee to be director of national intelligence, at her confirmation hearing yesterday before the Senate Intelligence Committee (CPR, Jan. 30).
While a Democratic House member from Hawaii, Ms. Gabbard was among a group of lawmakers who sought to amend section 702 to require warrants before Americans’ communications collected under the law could be accessed. She even sponsored legislation to eliminate section 702.
In her statements to the committee and answers to written questions, she reiterated that she favored requiring warrants but said that was a policy question that should be decided by Congress.
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