After a recently unsealed court opinion censuring the FBI for impermissibly searching sprawling NSA databases for information on Americans, the bureau has again vowed to fix itself.
The FBI has for years promised to address the issue, but the Foreign Intelligence Surveillance Court (FISC), which oversees the use of the intelligence databases, has repeatedly found the remedies lacking, although the most recent FBI internal audit showed improvements.
A 2022 FISC opinion unsealed on May 12 noted that the FBI had no right to search the databases for information on as many as hundreds of thousands of Americans, including many participants in the Jan. 6, 2021, Capitol breach. Those were only the violations identified by the government itself.
The FBI repeatedly searched the foreign intelligence databases without proper justification—sometimes using individual names of criminal suspects, other times using whole lists of “identifiers,” such as names and telephone numbers, according to the April 21, 2022, opinion.
Aside from the Jan. 6 participants, the improper queries also targeted thousands of donors to a congressional campaign, hundreds of criminal suspects, more than a hundred arrestees from the 2020 George Floyd protests, and even some victims of crimes and their relatives, according to the court.
Improper queries of the data easily translate to civil rights violations because the National Security Agency collects much of it under permissive rules for warrantless spying on foreigners set forth in Section 702 of the Foreign Intelligence Surveillance Act (FISA)—rules that wouldn’t fly under the constitutional protections enjoyed by Americans. The Fourth Amendment prohibits the government from spying on Americans without a warrant.
Although the NSA is supposed to minimize the number of Americans caught in its surveillance dragnet, unwarranted data collection still happens, such as when Americans talk to monitored foreigners. The raw Section 702 data are minimally processed, if at all. That means names of Americans aren’t replaced with generic placeholders that mask their identities.
The FBI is only allowed to search the raw Section 702 data on Americans if the query is “reasonably likely to return foreign intelligence information or evidence of a crime,” the court noted.
But improper queries were rather common. The FBI’s Office of Internal Auditing (OIA) looked at roughly 2,100 queries from 2020 and 2021 and concluded that almost 18 percent were “noncompliant.”
In many cases, the FBI insisted that the queries were proper even after they were flagged by the Justice Department’s (DOJ) National Security Division, which is supposed to double-check the FBI’s compliance, according to the FISC.
The FISC has complained about the FBI’s breaking of the rules since at least 2017.
In March 2016, the DOJ found out that some contractors had access to “raw” Section 702 information on FBI systems “that went well beyond what was necessary to respond to the FBI’s requests,” the court stated in an April 2017 opinion (pdf).
In 2018, the FISC criticized the FBI for its practice of bundling many targets into one query with a justification that only applied to the whole but not necessarily to each individual target. The DOJ found a number of other instances in which the FBI used the database improperly, including to vet some of its prospective sources.
The full extent of the problems was hard to gauge because, at the time, the FBI wasn’t tracking which queries were related to Americans and which weren’t.
The court told the FBI that it needed to make its agents identify each query related to Americans and write a justification for each.
In 2019, however, the DOJ informed the FISC of dozens more improper searches of the database, such as to vet a potential source, to vet a local police officer candidate, and to vet a maintenance crew visiting an FBI office.
The FBI has repeatedly pledged to put measures in place to ensure compliance, but the violations continued. The most recent set of measures, put in place in late 2021 and early 2022, require agents to personally type out a justification for each query to access the results and for a lawyer to approve queries that target many people at once.
“As Director [Christopher] Wray has made clear, the errors described in the Foreign Intelligence Surveillance Court’s opinion are completely unacceptable,” a senior FBI official told The Epoch Times in an emailed statement.
“As a result of the audits that revealed these instances of noncompliance, the FBI changed its querying procedures to make sure these errors do not happen again. These steps have led to significant improvement in the way we conduct queries of lawfully obtained Section 702 information. We are committed to continuing this work and providing greater transparency into the process to earn the trust of the American people and advance our mission of safeguarding both the nation’s security and privacy and civil liberties at the same time.”
The remedies appear to have moved the needle. Less than 4 percent of queries were found to be noncompliant in an OIA audit that looked at more than 500 queries conducted from July 1, 2021, through March 31, 2022.
But some argue that access to the data should be further restricted.
“Even if the compliance rate were 100 percent, the government should not be able to access Americans’ communications without a warrant,” Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, wrote on Twitter.
Sen. Rand Paul (R-Ky.) has repeatedly expressed a similar sentiment.
“The problem is the system can be abused. … It’s admirable to have some regulations and some checks and balances you put in place,” Paul said during a 2021 hearing.
“But the only real fix would be we should obey the Constitution.”