Feds rethink warrantless search stats and – oh look, a huge drop in numbers

119,000 instances of homeland snooping as the power to do so comes under review

Warrantless searches of US residents' communications by the FBI dropped sharply last year – from about 3.4 million in 2021 to 119,383 in 2022, according to Uncle Sam.

But that is still likely tens of thousands more people than should have been caught up in the FBI's domestic surveillance efforts, according to advocates for reform of Section 702 – the legislative instrument that allows warrantless snooping.

The numbers mentioned above were revealed in the annual Office of the Director of National Intelligence report, released at the end of last week. The report came just after Congress held a subcommittee hearing on Section 702 surveillance authority.

Section 702 is a provision of the Foreign Intelligence Surveillance Act (FISA) and gives US government snoops the authority to surveil Americans' electronic communications without a warrant. The power is set to expire at the end of the year unless Congress renews it.

While law enforcement has long argued [PDF] that Section 702 saves lives and is an indispensable tool when it comes to fighting terrorism, data privacy and civil liberties groups maintain it violates the Fourth Amendment and needs a major overhaul to prevent further unconstitutional surveillance.

The Office of the Director of National Intelligence report [PDF] gives several reasons for the decline in Section 702 searches related to US citizens and residents. For one, the FBI changed the methodology used to calculate the number of Section 702 searches, and says previous years' reports used duplicative counting methods.

A better estimate of 2021's warrantless communications searches puts the number closer to 3 million, not 3.4 million, for example, according to the government report.

This is like doing a touchdown dance because you threw an incomplete pass instead of an interception

Even at just 3 million, the 2021 number is a massive spike versus 2020's approximately 853,000 searches, and the report attributes this to "a number of large batch jobs" in the first half of 2021 related to one particular investigation into "attempts by foreign cyber actors to compromise US critical infrastructure."

"These queries, which included approximately 1.9 million queries related to potential victims – including US persons – accounted for the vast majority of the increase in US person queries conducted by FBI over the prior year," it notes.

Additionally, over the past year the FBI implemented new processes around Section 702 searches, including mandatory query training and "enhanced approval requirements for certain 'sensitive' queries, such as those involving domestic public officials or members of the news media."

It also now requires FBI agents to "opt-in" if they wish to run a search against Section 702-acquired data, instead of having queries run against this data by default.

All of these measures contributed to the drop in warrantless searches, according to the report.

Proponents of Section 702 reform take a slightly different view, unsurprisingly.

Around 119,000 queries represents an "undeniably a big drop" from previous years' searches, said Jake Laperruque, deputy director of Center for Democracy and Technology's Security and Surveillance Project.

"But to me, this is like doing a touchdown dance because you threw an incomplete pass instead of an interception," he told The Register.

"It's still a very bad thing in desperate need of reform. We're still talking about hundreds of thousands of searches for Americans' private wireless data."

For comparison, Laperruque pointed to the 2,245 wiretaps authorized by state and federal judges in 2021 – and the application process and judicial review that law enforcement must go through to obtain these surveillance tools, compared to the "backdoor search loophole" in Section 702.

"The fact that this was being framed as like a major decline just shows how much of a bizarre world we are in with this provision of FISA," he said. ®