FBI Improperly Used Surveillance Program to Spy on Jan. 6 Suspects

FBI Director Christopher Wray speaks during a press conference at the Justice Department in Washington, on Jan. 26, 2023. Mandel Ngan/AFP via Getty Images

The FBI abused its surveillance powers while spying on suspects in the Jan. 6, 2021, breach of the U.S. Capitol and Black Lives Matter protesters, a federal court said in a newly unsealed ruling.

FBI agents violated standards the agency developed for the Section 702 program, which enables spying on Americans and others, more than 278,000 times, the Foreign Intelligence Surveillance Court said in the 2022 ruling, which was made public for the first time on May 19.

Section 702 of the Foreign Intelligence Surveillance Act enables agencies like the FBI to collect information like emails without warrants from foreigners, even if they’re in the United States, and bars intentionally targeting Americans.

The FBI developed its own standard for Section 702 searches, stating that queries “must be reasonably likely to retrieve foreign intelligence information, as defined by FISA, or evidence of a crime, unless otherwise specifically excepted.”

But FBI agents have been violating the standard, the court has found, with the newest ruling disclosing hundreds of thousands of abusive searches in addition to those already known.

The abusive searches include multiple improper queries targeting suspected or confirmed Jan. 6 suspects.

In one instance, an analyst searched for information on 13 people suspected of being involved in the Capitol breach. The analyst “said she ran the queries to determine whether these individuals had foreign ties,” but the Department of Justice’s National Security Division (NSD) “concluded the queries were not reasonably likely to retrieve foreign intelligence information or evidence of crime,” the newly unsealed ruling states.

In another case, widespread searches that in total consisted of more than 23,000 separate queries looked for information on presumed Americans to see whether the people were “being used by a group” involved in the breach.

“The queries were run against unminimized Section 702 information to find evidence of possible foreign influence, although the analyst conducting the queries had no indications of foreign influence related to the query terms used,” the court said. “NSD assessed there was no specific factual basis to believe the queries were reasonably likely to retrieve foreign intelligence information or evidence of crime from Section 702 information.”

Other Improper Searches

The new ruling, released by the Office of Director of National Intelligence, also revealed that FBI personnel improperly surveilled a congressional campaign.

An analyst conducted a so-called batch query, or a widespread query, for over 19,000 donors to the campaign. The analyst claimed the campaign was “a target of foreign influence,” but NSD officials found sufficient evidence for queries for just eight of the people who were queried.

In another instance, a batch query was conducted on 133 people who were arrested “in connection with civil unrest and protests between approximately May 30, and June 18, 2020,” the time period during which people, primarily Black Lives Matter members and supporters, were protesting and rioting over the death of George Floyd in Minneapolis, Minnesota.

“The query was run to determine whether the FBI had ‘any counter-terrorism derogatory information on the arrestees,’ but without ‘any specific potential connections to terrorist related activity’ known to those who conducted the queries,'” the court found. NSD said the queries violated the FBI standards, but the FBI disagreed, claiming there was a “reasonable basis to believe these queries ‘would return foreign intelligence” due to citations that were redacted.

Additional 2020 violations included queries using variations of “political activist groups involved in organized protests;” 697 queries using identifiers on scheduled visits to a place or person that were redacted in the ruling; searches for at least 790 defense contractors that the FBI was considering requesting cooperation from; and at least 330 queries conducted using identifiers of employees of a company whose name was redacted, with the FBI claiming it might recruit the employees as sources.

Multiple queries were run without obtaining an order from the Foreign Intelligence Surveillance Court, another violation of the law.

Changes

Critics said the newly released information highlights a pattern of abuse.

“Chris Wray told us we can sleep well at night because of the FBI’s so-called ‘FISA Reforms.’ But it just keeps getting worse,” House Judiciary Committee Chairman Jim Jordan (R-Ohio) told The Epoch Times via email.

Wray is the FBI’s director.

Many of the improper searches were conducted before the FBI began overhauling the system. Officials have said the changes include strengthening training, ramping up auditing, and revising guidance on the querying standards.

The FBI told The Epoch Times via email: “As Director Wray has made clear, the errors described in the Foreign Intelligence Surveillance Court’s opinion are completely unacceptable. 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.”

Those changes have led to a drop in queries, according to data released in April.

Still, four percent of a sample of queries carried out in the second half of 2021 and the first quarter of 2020 violated the standards, the FBI’s own watchdog reported recently, and members of Congress are considering whether to reauthorize the law that grants the spying powers.

“The FBI has shown a penchant for spying on all Americans without a warrant. The opinion describes shocking abuses of the FBI’s Section 702 powers, and Congress should respond by ending this unconstitutional surveillance,” Aaron Mackey, the Electronic Frontier Foundation’s free speech and transparency litigation director, told The Epoch Times via email.

U.S. District Judge Rudolph Contreras said in the newly released opinion the surveillance court “is encouraged by the amendments to the FBI’s querying procedures” and that they appeared to be “having the desired effect.”

“Nonetheless, compliance problems with the FBI.’s querying of Section 702 information have proven to be persistent and widespread,” he added. “If they are not substantially mitigated by these recent measures, it may become necessary to consider other responses, such as substantially limiting the number of FBI personnel with access to unminimized Section 702 information.”

Mark Tapscott contributed to this report.