The FBI announced a new three-strike disciplinary system for employees who misuse the warrantless surveillance program under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The new punishments are based on the severity of the misuse and whether or not it was deliberate. 

Section 702 allows intelligence officials to collect information on non-U.S. persons who are located abroad and expected to possess, receive, or communicate foreign intelligence information. Audits have shown it’s been misused.  

Starting the week of June 11, FBI employees who conduct an initial improper search will have their FISA access suspended while they retake all mandatory training, sign a certification that will be placed in their personnel file, and receive mandatory one-on-one counseling with their field office attorney. 

Any subsequent incidents within a 24-month period could lead to an indefinite loss of FISA access, reassignment to a new role, referral to the FBI’s Inspection Division, or termination of employment. 

The disciplinary actions are described by FBI Deputy Director Paul Abbate as rapidly escalating. He said there are even stronger punishments for incidents deemed deliberate, reckless or particularly egregious. 

“The American people and Congress also need to have trust and confidence that these queries are being done lawfully and in a fully compliant manner. It is our obligation to rebuild and to earn that trust,” Abbate told the Senate Judiciary Committee. 

That trust needs to be rebuilt after multiple reports of misuse that even FBI Director Christopher Wray would not defend.

A Foreign Intelligence Surveillance Court opinion revealed the FBI conducted improper searches for Americans’ communications 278,000 times, even though Americans cannot be targeted under the program regardless of their location. 

The report also found that agents used FISA queries to look up information about 14 people who were suspected of participating in the Jan. 6 Capitol riot and over 100 people who participated in racial justice protests in June 2020. 

“There’s a warrant requirement to investigate an American citizen for potential wrongdoing and we don’t want this to be used to get around a warrant requirement. So bottom line is let’s reauthorize this program and build in some safeguards,” Sen. Lindsey Graham R-S.C., said. 

The FBI is announcing these changes as Congress works to reauthorize Section 702 surveillance authorities. Lawmakers on both sides of the aisle have expressed concerns. 

“But why should Congress or the American people trust the executive to comply with the law this time, in light of this track record?” Chairman Dick Durbin, D-Ill., asked witnesses. 

“The problems that you’ve cited and that we’ve identified in our reviews of the FBI careers are not acceptable and I don’t defend them. I’m not here to do that. What I can tell you is that those problems predate the critical remedial measures that were put in place in 2021 and 2022,” Matt Olsen, assistant attorney general for the Department of Justice National Security Division, responded. 

Those measures include an office of internal audit and attorney preapproval requirements for large searches. 

Congress has until Dec. 31 to reapprove the program. Some lawmakers said it may take that long.