Court Rules FBI Handling of Surveillance Database Was Unconstitutional

October 9, 2019 Updated: October 9, 2019

The nation’s principal federal law enforcement agency violated the privacy of U.S. citizens through allegedly misusing a surveillance database, a court found in late 2018.

The U.S. government has revealed for the first time the Foreign Intelligence Surveillance Court ruled last October the Federal Bureau of Investigation (FBI) had breached the right to privacy of citizens while conducting some of its electronic surveillance activities that allegedly targeted foreign suspects.

The Wall Street Journal (WSJ) reported this was one of the few times the nation’s government-funded intelligence programs had been found to have acted illegally since Section 702 surveillance activities were ramped up following the Sept. 11, 2001 attacks on the World Trade Center in New York.

One violation was the FBI’s 2017 security review of anyone who has access to the bureau’s buildings and computers, including its own staff. A broad search was carried out and filtered through more than 70,000 emails, phone numbers, and other digital data.

Judge James Boasberg said this demonstrated how a “single improper decision or assessment” could begin an invasive search of data created by several authors.

“A large number of FBI queries that were not reasonably likely to return foreign-intelligence information or evidence of a crime [were reported by the government since April 2017,]” Boasberg said in a partially redacted 138-page opinion obtained by the WSJ. “The court accordingly finds that the FBI’s querying procedures and minimization procedures are not consistent with the requirements of the Fourth Amendment.”

The Fourth Amendment states people have the right to feel safe against “unreasonable searches and seizures.”

“[They] shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” according to the Legal Information Institute.

Boasberg gave another example of misuse when an FBI contractor allegedly used the intelligence database to search for himself, colleagues, and relatives. Federal law requires that the database only be searched by the FBI as part of seeking evidence of a crime or for foreign intelligence information.

On the flip side, the judge had no qualms with procedures submitted by the government-funded Central Intelligence Agency and National Security Agency according to the New York Times.

The Trump administration had argued against making changes to the program that could better protect the privacy of Americans because this would make it harder for the FBI to effectively respond to national security threats.

The U.S. government lost a subsequent appeal against the judgment in another secret court session earlier in 2019 before declassifying the first ruling.

The NY Times revealed the FBI was not keen to follow a new congressional directive for the bureau to closely monitor Section 702 searches through the warrantless surveillance program. This non-compliance resulted in a secret legal battle that forced the bureau into submission.

Following the court’s decision, the FBI promised to introduce new protocols to better protect the privacy of U.S. citizens, like monitoring and keeping records of how the database is searched, to identify potential compliance issues in the future.

FBI Director Chris Wray also indicated a new compliance review team would be formed to help avoid a repeat incident, according to the WSJ.

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