There is still no warrant requirement in the newest version of the FISA(702) reauthorization bill as proposed [SEE HERE]. The new modifications are only nine pages, and I would recommend all interested parties to review the language.
The House proposal is for a three-year extension of 702 with a new structural compliance report process that requires the FBI to submit a monthly report to the Civil Liberties Protection Officer (CLPO) within the office of the Director of National Intelligence. Essentially, the ODNI becomes the compliance auditor for how the FBI uses the process.
The CLPO reviews the names and summaries of intents that have been searched through the use of FISA (702) as submitted -monthly- by the FBI. If there are any violations or concerns the CLPO notifies the Intelligence Community Inspector General for investigation. Both the CLPO and the ICIG report to the ODNI (Tulsi Gabbard, currently).
“The Inspector General of the Intelligence Community shall investigate each query referred … to determine whether the query constitutes a violation of laws, rules, or regulations or an abuse of authority.” It’s another layer of compliance review intended to stop search abuses within the database that is held and maintained by the NSA and U.S. Cyber Command.
Here’s the issue with that part: The FBI can only submit the names that were searched if they are aware of them. Meaning, the FBI doesn’t maintain the audit trail, so the FBI only knows who was searched using 702 based on the FBI ‘searcher‘ reporting their search.
This compliance process doesn’t address unlawful database searches that are not reported because they are unknown to the FBI compiling the report.
The NSA and Cyber Command would still need to be monitoring and auditing the searching of the NSA database; and those searches may, or may not, be done by FBI officials who are filling out reports telling the DNI of their activity.
If a non-FBI person is abusing the database; or if an FBI agent simply doesn’t report his search; that/those search(es) would not show up on the monthly report to be delivered to the CLPO. Hence, how would the Civil Liberties Protection Officer even know?
That layer of compliance just doesn’t make sense.
If this process was indeed going to be a compliance review, then the report should come from the NSA/Cyber Command, not the FBI, and the NSA/Cyber Command could simply provide the audit trail to the Civil Liberties Protection Officer (DNI) monthly.
This could even be done today, without any FBI involvement whatsoever.
The simple fact that congress is putting the FBI into the compliance loop; in combination with the knowledge that the FBI is completely and institutionally corrupt, tells me that congress is trying to maintain a system that can be exploited for unlawful or unauthorized searches.
I’m not known for beating around the bush, and that is the reality of the thing. A compliance layer that includes the FBI generating a monthly report on their use of the database, is simply another layer the FBI can manipulate in order to abuse the database.
I note that nowhere in the reauthorization bill does it expressly designate who from within the FBI is responsible for the reporting.
