A Review of the Federal Bureau of Investigation’s Querying Practices Under Section 702 of the Foreign Intelligence Surveillance Act

After reviewing a draft of this report, the FBI informed the OIG that FBI leadership had recently decided not to make a policy change at this time that would allow non-attorney supervisors to approve certain U.S. person queries. However, FBI indicated that its decision does not remove the option as a possibility in the future. In light of (1) the FBI's query compliance history described in Chapter One, (2) FBI leadership's initial decision immediately after enactment of RISAA to limit approvals of U.S. person queries to attorneys and the improved level of compliance that followed, and (3) the inherently and highly sensitive nature of conducting U.S. person queries of Section 702-acquired information, prior to allowing selected non-attorney supervisors to approve certain U.S. person queries, the FBI, in consultation with NSD, should conduct an assessment of whether any potential benefits of allowing selected non-attorney supervisors to approve certain U.S. person queries will come at the cost of a decline in the efficacy of the pre-approval requirement, and what additional internal controls can be implemented to prevent such a decline. If the FBI decides to allow non-attorney supervisors to approve certain U.S. person queries, the FBI should further consider starting with a pilot program that emphasizes regularly required training and is subject to monitoring of compliance rates of U.S. person queries approved by non-attorney supervisors and continued oversight.

Regardless of whether RISAA's requirement for the Department to review all FBI U.S. person queries remains in place following that provision's sunset on April 20, 2026, because of the limited resources and capabilities of OIA, NSD should continue its current practice of reviewing 100 percent of the FBI's U.S. person queries.

In light of NSD's continuing independent review of all U.S. person queries and OIA's limited resources, OIA should focus its oversight to complement, rather than duplicate, NSD's work. Under such an approach, OIA's continued reviews of all U.S. person queries could be directed to areas not covered by NSD's reviews, or OIA could use sampling or other GAO-endorsed standards and methods to audit a subset of U.S. person queries with the goal of maintaining the multi-level oversight structure that was contemplated by the 2020 Barr Memorandum Regarding FBI Internal Compliance Functions and that we believe appropriate for these activities.

The FBI should maintain records of all requests to the Deputy Director for approval of sensitive queries and the dispositions of such requests, including requests that are not ultimately approved.