The denominator

Ninety-eight point nine percent. That is how often, according to the intelligence agencies, FBI searches of Americans' communications follow the rules, and it is the number Congress has been handed while it decides whether to renew Section 702 of the Foreign Intelligence Surveillance Act. WIRED reported Tuesday on what that number was printed next to:

The ruling is the Foreign Intelligence Surveillance Court's March opinion on the program. Under the administration's own published rules, it was due for release review within 180 days, a window that closed September 13. Attorney General Todd Blanche, asked in writing in July whether he would commit to declassifying it by then, answered "Yes." Senators Ron Wyden and Adam Schiff now want an explanation, and the names of the officials responsible, by November 6. That much is a story about a broken promise. The more important part is what the court found.

In outline, it is known. Analysts were using search filters to pull Americans' messages out of intercepted data without the approvals, written justifications or records the law requires. The court held, according to administration talking points the New York Times reported in April, that tools which narrow intercepted data to an American's messages are searches of Americans, bound by the same limits, and ordered them rebuilt. Then it approved another year of collection.

That holding is the whole problem with the number. A compliance rate is a fraction, and the ruling is about the denominator. Congress is being asked to renew the program on a fraction whose denominator the court redrew in March, and the redrawing is the one part nobody outside a secure room is allowed to read.

The gaps in that denominator are not hypothetical. The FBI's search counts before 2025 leave out queries run through its "participants filter," a tool that let agents select people in contact with surveillance targets and read their messages. The government's own privacy board calls those searches "not possible to track." The Justice Department's inspector general, reviewing the counted searches a year ago, put compliance at 98.6 percent and could not conclude that the bureau's querying problems "are entirely in the past." The 98.9 figure appears nowhere in that review. The fact sheets also say FBI auditors check every search. Kash Patel closed the bureau's Office of Internal Auditing and moved its auditors into another division.

The administration's best answer is that Congress isn't voting blind. Jay Clayton, the director of national intelligence, wrote before his confirmation that the full opinion had been made available to lawmakers, and Dick Durbin went to the Senate floor in June to urge colleagues to read it in a secure room. "I have seen it," he said. Grant all of that. Any senator who wants the definition can walk in and get it. But no senator can quote it. The floor debate, the 23 groups from the ACLU to the conservative-backed Project for Privacy and Surveillance Accountability asking Congress to wait, and the voters those senators answer to all get the percentage without the definition. Meanwhile the Justice Department is appealing the parts of the ruling that limit its filtering tools. The government contests the denominator in a closed court and argues from the fraction in public.

The government contests the denominator in a closed court and argues from the fraction in public.

The calendar favors the number. Reform advocates expect a push to attach renewal to the annual defense bill, which Congress usually finishes in December; that is how Section 702 got four more months in 2023. Collection continues under the court's approval until March either way. Nothing operational forces the vote to come before the ruling does.

None of this requires deciding whether Section 702 is worth having. It requires knowing what 98.9 percent is a percentage of. The court answered that in March. Congress should be able to say the answer out loud before it votes.