By Lisa Rosenberg*
July 14, 2017 – During its recent confirmation hearing for Christopher Wray to succeed James Comey as the Director of the Federal Bureau of Investigation, the Senate Judiciary Committee properly focused on whether Wray would be independent enough to withstand potential political pressure on the agency. Noting that he would resign if asked by the president to do anything “illegal, unconstitutional or even morally repugnant,” Wray’s answers reassured Committee members, and he seems headed toward a smooth confirmation. But before the final vote, Senators should demand that Wray commit to fostering openness and accountability at the FBI, and put in the record the nominee’s positions on warrantless surveillance, the use of cell phone interception technology, and police data collection.
Congress and the public are largely in the dark about the FBI’s use of data that is collected without a warrant, ostensibly for the purpose of foreign intelligence gathering. A provision of law known as Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the warrantless surveillance of electronic communications of non-U.S. persons located abroad in order to obtain foreign intelligence information. The FBI, however, is permitted to query the 702 database for data on people in the United States even if the information is not likely to result in foreign intelligence information. Due to sunset at the end of the year, Congress should amend the law to prevent these kinds of warrantless searches. In the meantime, though, Wray should state for the record whether he supports the FBI’s use of warrantless surveillance to detect activities that have no direct relationship to counterterrorism investigations, and whether he believes the public has the right to know how many times the FBI searches the 702 database for information that is used in criminal investigations.
Similarly, Congress should demand to know Wray’s position on the FBI’s use of cell-site simulators—portable surveillance devices that collect cell phone identification and location information by mimicking cellphone towers. In September 2015, the Justice Department released policy guidance calling on law enforcement agencies to obtain search warrants before using cell-site simulators. Congress should determine whether, as director, Wray will advance openness and accountability by continuing to support policies to ensure the FBI obtains warrants prior to using cell-site simulators and requiring the FBI to follow the data retention and transparency provisions included in the Justice Department’s 2015 guidance.
Finally, the FBI has an important role to play in data collection around policing, including gathering and disseminating information on hate crimes and officer involved shootings. Unfortunately, the FBI’s data collection programs suffer from poor methodology and incomplete reporting. Congress should determine how Wray will improve efforts to collect data on police use-of-force incidents so that they are sufficient to create an informed public and more accountable law enforcement nationwide.
Members of the Judiciary Committee have until today to ask questions of Mr. Wray for the record. Senators should use this window to ensure Mr. Wray will be a strong advocate for greater FBI transparency and accountability.
*Lisa Rosenberg is Executive Director of OpenTheGovernment.