An advisory board to President Biden has recommended limiting the F.B.I.’s ability to use a controversial warrantless surveillance program to hunt for information about Americans, even as it urged lawmakers to renew the law that authorizes it.
The panel, known as the President’s Intelligence Advisory Board, suggested barring the bureau from searching a database of intercepted information when looking for evidence about Americans in criminal investigations that do not involve foreign intelligence. Under the proposal, however, the F.B.I. could still conduct such searches in investigations related to national security.
The board — composed of private citizens who have security clearances, although some are former senior government officials — delivered the recommendation in a declassified 39-page report made public on Monday. It came as Congress was debating whether to extend the law authorizing the program, known as Section 702, which is set to expire at the end of the year.
The White House was studying the recommendation, a senior administration official said in a background briefing on Monday. In a statement, the F.B.I. did not directly address the proposed new limit but said, “We agree that Section 702 should be reauthorized in a manner that does not diminish its effectiveness, as well as reassures the public of its importance and our ability to adhere rigorously to all relevant rules.”
Under Section 702, the government can collect — from American companies like Google and AT&T and without a warrant — the communications of targeted foreigners abroad, even when they are talking to or about Americans. The program traces back to a once secret warrantless surveillance program that the George W. Bush administration started after the Sept. 11, 2001, terrorist attacks. After the program was exposed, Congress legalized a version of it.
The advisory board also made several other recommendations.
They included seeking court approval to use Section 702 for counternarcotics purposes. The U.S. government can currently use the program to gather information about other governments, counterterrorism and the proliferation of weapons of mass destruction.
The panel also recommended that agencies like the F.B.I. that have access to raw Section 702 information emulate an existing National Security Agency rule that two officials sign off that standards have been met before conducting any query using Americans’ identifiers, like their names, phone numbers or email addresses.
How the government can use its database of intercepts that have been already collected when scrutinizing Americans has been a subject of heated debate.
Limiting the F.B.I. to sift through Section 702 information for investigations related to foreign intelligence would put it on the same footing as other agencies that have access to the database of intercepted information, like the C.I.A. or the N.S.A.
In practice, purely criminal investigations involving Americans and without any nexus to national security — like espionage or international terrorism — are a small part of how the F.B.I. has used Section 702. It made 13 purely criminal queries using Americans’ identifiers in 2021 and 16 in 2022, according to a recent report — years during which the overall number of American queries were about 3.4 million in 2021 and just over 200,000 in 2022.
Still, the notion that Section 702 creates a backdoor to the Fourth Amendment by allowing the F.B.I. to read private communications to or from an American without a warrant in ordinary criminal contexts has raised particular alarm. In 2018, Congress required the F.B.I. to get a court order before analysts could read any material that came up in response to purely criminal inquiries when there was an open criminal investigation, but the bureau never obtained such an order, leading to some compliance incidents.
Civil libertarians have long wanted to end or place more limits on the program because of its impact on the privacy of Americans, but Congress reauthorized it in 2012 and 2018. This cycle, however, those skeptics have been joined by Republicans who have aligned themselves with former President Donald J. Trump’s hatred of the F.B.I. In particular, he has been aggrieved by the multiple investigations into him, including an inquiry into ties between Russia and his 2016 campaign, as well as a court-authorized search of his Florida club and residence last year.
Repeated findings that F.B.I. analysts violated standards limiting when the bureau may lawfully search the repository using identifiers of Americans have provided fodder to critics.
While the F.B.I. has enacted changes intended to improve compliance, like requiring analysts to provide a written justification of why each search of the Section 702 repository meets the standard, it is not clear that will be enough to persuade lawmakers to reauthorize the program. In making its recommendation, the advisory board suggested it could satisfy interest in imposing more limits on the F.B.I. as part of any reauthorization bill.
“The cost of failure is real,” the report said. “If Congress fails to reauthorize Section 702, history may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time.”
But the board rejected as unjustified the more sweeping reform proposal that libertarians have long advocated: to require the government to obtain a court warrant before using Americans’ identifiers to search the repository.
Requiring a court order before doing so, the board said, would prevent intelligence agencies from discovering threats to the country in a timely manner because there would be too many requests to process.
“Often, there is not enough information to prove probable cause when a U.S. person query is being conducted,” it added. “It likely cannot be determined at that point whether the U.S. person is a potential victim or perpetrator involved in a foreign threat to the United States.”
