Christopher Wray

Opening Statement to the Senate Judiciary Committee on Border Security and the Foreign Intelligence Surveillance Act's Section 702

delivered 5 December 2023, U.S. Capitol Building, Washington, D.C.

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Thank you. Good morning, Chairman Durbin, Ranking Member Graham, and members of the committee. Iím proud to be here today representing the FBI.

The threats the Bureauís 38,000 men and women tackle every day are more complex and evolving more quickly than ever before, and we continue to work relentlessly to stay ahead of the threats and outpace our adversaries.

For example, last year, we disrupted over 40% more cyber operations and arrested over 60% more cybercriminals than the year before.

Over the past two years, weíve seized enough fentanyl to kill 270 million people. Thatís more than 80% of all Americans.

Weíre also focused on other threats that emanate from the border and impact communities all over the country -- things like violent gangs and human traffickers.

At the same time, given the steady drumbeat of calls for attacks by foreign terrorist organizations since October 7, weíre working around the clock to identify and disrupt potential attacks by those inspired by Hamasís horrific terrorist attacks in Israel.

And, in recent years, weíve seen an increase in hate crimes investigations, including a particularly big chunk involving threats to the Jewish community. Thatís a troubling trend we were focused on before October 7 thatís only gotten worse in the months since.

I could go on and on about the important work the FBIís dedicated professionals are doing across the entire spectrum of threats, each and every day, to protect their fellow Americans.

But in my remaining time, I want to emphasize the importance of one tool, in particular, thatís indispensable to our efforts to combat threats posed by foreign adversaries -- one that will expire in just a few short weeks if Congress does not act -- and thatís the FBIís FISA Section 702 authorities.

As this committee knows, 702 allows us to stay a step ahead of foreign actors located outside the United States who pose a threat to national security, and the expiration of our 702 authorities would be devastating
to the FBIís ability to protect Americans from those threats.

Let me tell you what I mean by that.

When an overseas cybercriminal breaches a transportation hub, a public utility, or even a childrenís hospital, 702 is often the tool we use to find victims and get them what they need to get their systems back up and running. And, just as important, it helps us identify the next target so they can defend themselves against an attack.

In just one recent cyber case, for instance, 702 allowed the FBI to alert more than 300 victims in every state and countries around the world. And I should add that many of those crucial victim notifications were made possible by our ability to conduct U.S.-person queries of our existing 702 collection.

When it comes to foreign adversaries like Iran, whose actions across a whole host of threats have grown more brazen -- seeking to assassinate high-level officials, kidnap dissidents, and conduct cyberattacks here in the United States -- or the Peopleís Republic of China, which poses a generational threat to our economic and national security, stripping the FBI of its 702 authorities would be a form of unilateral disarmament.

Or, take the elevated threat of international terrorism. 702 is key to our ability to detect a foreign terrorist organization overseas directing an operative here to carry out an attack in our own backyard, and U.S.-person queries, in particular, may provide the critical link that allows us to identify the intended target or build out the network of attackers so we can stop them before they strike and kill Americans.

Given the critical importance of 702, weíre committed to being good stewards of our authorities. To that end, Iíve ordered a whole host of changes to address unacceptable compliance incidents -- reforms many members of this committee have now seen with their own eyes in live demonstrations of our systems at FBI Headquarters. Weíve improved our systems, enhanced training, added oversight and approval requirements, and adopted new accountability measures. On top of that, we stood up a brand-new Office of Internal Auditing thatís been focused specifically on FISA compliance.

Most of the declassified reports thatíve come out over the past year or so involve compliance errors that predate those reforms, and Iíve been encouraged by the more recent data showing the significant, positive impact the changes have had. The most recently declassified opinion from the Foreign Intelligence Surveillance Court, for instance, shows a 98% compliance rate, and observes that the reforms are ďhaving the desired effect." And the two most recent Department of Justice semiannual reports, likewise, now show a greater-than-98% compliance rate.

Weíre proud of the progress weíve made, but weíre by no means done. This is an ongoing effort, and weíre determined to work with Congress to get it right.

But, as we enter this critical phase of the renewal process, itís imperative that we not undercut the effectiveness of this essential tool with a warrant requirement or some other restriction that would paralyze us and our ability to tackle fast-moving threats like the ones I just described. Because crucial to our ability to use this information to protect Americans is our ability to review it promptly and efficiently.

And, to be clear, no court has ever held that a warrant is required for the FBI to query 702 data already lawfully in our holdings. In fact, every court thatís considered 702 in its current form -- the FISA Court, the FISA Court of Review, and three courts of appeals -- has found 702 to be constitutional. So, restricting the FBIís ability to collect under 702 or to review whatís already in our collection would be a legislative policy choice.

And if thatís the path thatís chosen, what are we going to say to the family whose loved oneís care was sabotaged when a hospital was taken offline by a foreign adversary and the FBI wasnít able to stop the cyberattack?

Whatís the justification for not using every lawful tool to stop China from stealing our technology and undermining our freedoms? Because I can assure you the PRC [People's Republic of China] is not holding back or tying its own hands behind its back.

And what if there were a terrorist attack that we had a shot to prevent, but couldnít take it, because the FBI was deprived of the ability under 702 to look at key information already sitting in our holdings?

I was in FBI Headquarters on 9/11 -- 22 years ago -- and, over the years, Iíve spoken with families of victims of that horrific attack.

Before that attack, well-intentioned policymakers had made the choice to build a wall preventing access to national security information sitting in our and our partnersí holdings. Allowing 702 to lapse or amending it in a way that undermines its effectiveness would be akin to laying bricks to rebuild another, pre-9/11-style wall.

What could anyone possibly say to victimsí families if there was another attack that we could have prevented if we hadnít given away the ability to effectively use a tool that courts have consistently deemed constitutional?

Because letís not fool ourselves: Thatís whatís at stake with the reauthorization of 702.

As the threats from foreign adversaries to our homeland continue to evolve, the agility and effectiveness of 702 will be essential to the FBIís ability -- and, really, our mandate from the American people -- to keep them safe for years to come.

And we owe it to them to make sure weíve got the tools we need to do that.

Thank you for having me, and I look forward to your questions.

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