(Ken Silva, Headline USA) Donald Trump’s pick to run the FBI, Kash Patel, disappointed civil libertarians and privacy advocates during his Thursday confirmation hearing, where he told Congress that he supports warrantless searches of U.S. communications collected under Section 702 of the Foreign Intelligence Surveillance Act.
Section 702 of FISA allows the FBI and other agencies to collect without a warrant the communications of foreigners located in other countries, including when those subjects are in contact with Americans or other people inside the U.S.
Those U.S. communications are then stored in a database, and are subject to warrantless searches by federal agents—though a district court recently deemed this practice unconstitutional. According to an ODNI report from last year, Section 702 was used to query the communications of U.S. persons 57,094 times between December 2022 and November 2023.
Patel, who used Section 702 when he worked in the Justice Department, was first asked about the issue by Sen. John Cornyn, R-Texas. Patel defended warrantless FISA 702 on the grounds that it produces information for the President’s daily brief, and that the intelligence gathered from 702 can be used for things such as rescuing American hostages.
Senator John Cornyn: "Section 702 of the intelligence can be used to appropriately protect national security, but they can also be abused by those willing to cross ethical boundaries."
Kash Patel concurs, "Both statements hold truth, highlighting the urgent need for… pic.twitter.com/463DsOQmoS
— Smokahontas (@Smokahontas2024) January 30, 2025
“Section 702 makes up about 45% of the presidential daily briefing,” he said.
“Having a warrant requirement is just not [compatible] with the requirement to protect American citizens,” he added.
Sen. Mike Lee, R-Utah, disagreed.
“This misses the point. The concern Americans have isn’t about real-time collection of foreign targets. The concern is once those [foreign] communications are stored, you have within them incidentally collected communications of Americans—text messages, emails, recorded phone calls and so forth,” Lee said.
Lee then asked Patel whether a warrant is required to search through the U.S. communications collected under 702. Patel said he believe a warrant is required—an incorrect answer.
Past FBI directors haven’t been forthcoming about FISA 702 abuse@Kash_Patel will fix that
pic.twitter.com/M2pnwAlni3— Mike Lee (@BasedMikeLee) January 30, 2025
“Under current law, they routinely access [U.S. communications] without a warrant … They’re supposed to have a good reason. But we’ve found that on hundreds of thousands of occasions, they search for Americans without a warrant,” Lee said, correcting Patel’s incorrect answer.
Despite Patel’s misunderstanding of the law and his willingness to continue warrantless surveillance, Lee said he supported his nomination.
Patel did say he’ll work with Congress to implement more safeguards to FISA.
Ken Silva is a staff writer at Headline USA. Follow him at x.com/jd_cashless.
