The outrage over massive, pervasive surveillance has put the NSA in the spotlight
, somewhere its officials are obviously uncomfortable being. The administration's minimal efforts
to address domestic surveillance have also focused on the agency. But there's an agency doing just as much privacy-invading as the NSA and its efforts are now going largely unnoticed
, as Emily Berman points out at Just Security.
Commissions, oversight boards, and review groups are all the rage these days. Recent weeks have seen hundreds of pages of reports evaluating American intelligence agencies, and there’s a promise of more to come. These reports have recommended dozens of modifications affecting all three branches of government. But there’s an integral part of the surveillance state that has thus far largely escaped the current scrutiny: the FBI. And while failure to “connect the dots” is an oft-cited flaw within the intelligence community, not insisting on examining more closely the FBI’s surveillance activities represents a similar flaw by those outside the intelligence community.
The FBI is now basking in the darkness the NSA used to occupy. The first leak
had the FBI's name all over it, and it's the power granted to the FBI
that allows the NSA to collect millions of domestic phone records. The NSA technically isn't allowed to vacuum up domestic records. The FBI, however, is. But the NSA "takes home" the bulk collection and "tips" a few hundred phone numbers to the agency whose name is listed on the first page.
As the NSA feels the heat and legislation makes the rounds (both at national
and state levels
) targeting the agency, the FBI continues to hum along nearly unnoticed.
The vast majority of the FBI’s intelligence collection, by contrast, arguably enjoys even less oversight while focusing largely on Americans, often Americans who aren’t even suspected of criminal activity or of posing a threat to the national security. Rather than statutes and judicial review, constraints on FBI intelligence collection are often limited to those provided by internal guidelines—sometimes secret ones—issued by the Attorney General and the FBI itself. Even FBI tools that are subject to some statutory restrictions—such as National Security Letters (NSLs), which allow the FBI to obtain telephone toll records, e-mail subscriber information, employment history, and financial records—operate free from judicial oversight.
That the FBI still operates under secret mandates should be worrying. Unlike the NSA, which is ostensibly tasked with surveilling foreign threats and national security, the FBI is primarily an investigative
law enforcement agency (although it seems to be more focused on fighting terrorism
these days), given free reign to surveil US citizens. This has resulted in the widespread, suspicionless surveillance of certain ethnic groups, sometimes in conjunction with local law enforcement.
The FBI may not be sweeping up quite as much data as the NSA but it is every bit as untargeted, intrusive and inefficient as the NSA itself. The supposed terrorists it targets (and I'm using the word very loosely here) with "demographic programs" and other efforts geared towards thwarting Islamic extremists are pretty much turning up nothing but dead ends. The agency's counter-terrorism efforts are better known for catching "terrorists"
tangled in "plots" of FBI agents' own devising
. The FBI creates the crimes and busts the "criminals." It's all too tidy and it ignores those who are actually targeting the US, as Berman notes.
Indeed, according to a 2011 Council on Foreign Relations report, FBI statistics indicate that “roughly two-thirds of terrorism in the United States was conducted by non-Islamic American extremists from 1980-2001; and from 2002-2005, [that percentage] went up to 95 percent.” More recently, the Department of Homeland Security reported that of the 12 successful terrorist attacks in the United States between 2008 and 2009, only three were linked to Islamic extremism.
What seemed to be just a diversionary talking point now appears to be the sad reality. The FBI, like the NSA, truly wants to "prevent the next 9/11," going so far as to ignore its own statistics in order to surveil Muslims 24/7. (The NYPD is at least as worrisome in its myopia
-- something no doubt made worse by its frequent dalliances with the FBI.)
But the larger point is still this: an agency granted the power of domestic surveillance is operating without oversight. The NSA's collections are mostly of the "incidental" variety (when you "collect it all," you get it all), but the FBI's data harvesting is no less expansive. Privacy protections are equally weak, with the FBI's possibly even weaker than the porous guidelines applied by the NSA.
The FBI's tools are also more pliant than even the infamous "rubber stamp" FISA court. The agency routinely abuses NSLs and has the power to open investigations (called "assessments") without even showing reasonable suspicion. Berman's excellent article affirms the assertions
made by the ACLU last September, when it reminded the American public there was more than one three-letter agency hoovering up its data. The FBI needs to be watched closely. Unfortunately, overseeing the NSA alone
seems to be beyond the reach of the oversight committees. Adding another agency to the oversight mix seems to be out of the question at this point. No legislator has suggested the FBI be subjected to the same scrutiny, but its turn in the national spotlight is long overdue.