On June 13, during the Senate Judiciary Committee hearing on Foreign Intelligence Surveillance Act Section 702, FBI Deputy Director Paul Abbate highlighted our continuing efforts to improve FISA query compliance.
Deputy Director Abbate announced additional policy changes at the hearing. Previous reforms in 2021 and 2022 have yielded substantial improvements as detailed in the fact sheet included below, but the FBI is committed to continuing progress and ensuring our employees work within the boundaries of our 702 authority.
The ability to access Section 702 data through strict compliance with the law is crucial to protecting our national security. These new accountability procedures will hold individuals querying 702 data personally accountable not only for intentional misconduct, but also for behavior that is reckless or negligent. Additional reforms will apply to field office leaders and evaluate their FISA compliance practices.
Below is a list of those reforms the FBI is employing and the forthcoming field office measures that Director Christopher Wray and the entire FBI leadership team will implement to safeguard appropriate use of this critical tool.
Fact Sheet: New FBI FISA Query Accountability Procedures and Field Office Health Measure
Beginning in the summer of 2021, the FBI instituted a series of reforms to address the root causes of Foreign Intelligence Surveillance Act query compliance incidents uncovered by the Department of Justice during its regular oversight reviews. A summary of these 2021/2022 reforms is available here.
These reforms have already had significant positive effects, including a nearly 94% reduction in U.S. person queries overall, and a 96% compliance rate with the querying standard, which represents a 14 percentage point increase, as determined by the FBI’s Office of Internal Auditing.
To further ensure compliance and accountability at all levels of the Bureau, FBI leadership is enacting additional measures.
“FISA authorities and the ability for the FBI to query FISA 702 holdings are absolutely critical to the national security of the United States. It is also imperative that the American people have trust and confidence that these queries are being done lawfully and in a compliant manner. The FBI has made significant progress, but still has work to do,” said FBI Deputy Director Paul Abbate. “Noncompliance incidents are unacceptable and do not reflect the standards we seek to hold ourselves to in the FBI. This is why I am announcing additional measures the FBI will be taking to hold our personnel accountable for FISA-related compliance incidents. These measures underscore the FBI’s commitment to maintaining public trust in its use of all FISA authorities, including those authorized by Section 702.”
New FBI FISA Query Accountability Procedures
- This week, the FBI is issuing new FBI FISA Query Accountability Procedures to its workforce, which will be incorporated into FBI policy going forward. Among other things, the Accountability Procedures:
- Established a new policy with escalating consequences for performance incidents involving negligence, including centralized tracking of individual employee performance incidents over time.
- An initial incident would trigger immediate suspension of FISA access while employee: (1) retakes all mandatory FISA training, (2) executes a signed certification that will be placed in the employee’s personnel files, and (3) receives mandatory one-on-one counseling with their field office attorney.
- Subsequent incidents within a 24-month period would require further measures, up to and including indefinite loss of FISA access, reassignment to a new role, and/or referral to FBI’s Inspection Division to review potentially reckless conduct.
- Clarified the existing requirements for referring intentional misconduct and reckless behavior involving FISA queries to the FBI’s Inspection Division for investigation and disciplinary action by the FBI’s Office of Professional Responsibility.
- Historically, such instances of intentional or reckless behavior have been extremely rare, and there have been none identified since 2018.
- Established a new policy with escalating consequences for performance incidents involving negligence, including centralized tracking of individual employee performance incidents over time.
Evaluating Field Office Executive Leadership on FISA Compliance
- A new FISA Compliance “Field Office Health Measure” (FOHM) will take effect with the beginning of the new fiscal year in October 2023. This new FOHM will ensure accountability across the leadership ranks for following the relevant FISA safeguards.
- Each year, field office executive leadership (i.e. special agents in charge and assistant directors in charge) are evaluated on a series of health measures for their field offices, which can affect eligibility for promotion and annual bonuses.
- Under the new FY2024 FISA Compliance FOHM, field office heads must now monitor FISA compliance by convening at least two semiannual meetings with their leadership teams to assess performance in a series of specified FISA compliance areas.
- In future fiscal years, as the FBI’s Office of Internal Auditing develops more comprehensive compliance data across field offices, the FOHM is expected to transition to directly measuring compliance outcomes and rating executive leadership based on those outcomes.
