So Far, The FBI Is Benefiting The Most From The NSA Leaks

from the thanks-for-taking-one-for-the-team,-NSAbros! dept

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.

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Comments on “So Far, The FBI Is Benefiting The Most From The NSA Leaks”

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John Fenderson (profile) says:

This has been worrying me, too

All this (well deserved) attention to the NSA is letting the FBI, CIA, and other spy agencies who do the same things off the hook. I’m not sure what to do about that.

However, there is one good reason why we should give the NSA (and CIA) the most hell for this: domestic spying is specifically illegal for them to do. It makes the case both easy and more egregious — the only question you need an answer to is “did they spy domestically?”

It’s specifically legal for the FBI to spy domestically. This means that you can’t just say “they were spying” and declare victory. You have to go a bit further and make the case for why the spying they were doing was not allowed. That’s a more nuanced kind of argument to make.

The NSA (and CIA) are low hanging fruit.

Pragmatic says:

Tim, it’s “free rein,” not “free reign.”

Back on topic, it’s funny that, even though we’ve been generally aware of the FBI’s domestic surveillance activities, we haven’t been making a fuss about it. Is this about the NSA taking one for the team or something? Remember, the NSA is a blanket security agency that feeds into both the CIA and the FBI.

Old Liberal says:

No Comment

I would like to be more outspoken about my concern with the NSA, etc. Problem is, I am in my late 70s and depend almost entirely on my Social Security payments. If the government decided to hold up my payments for two months because of my strong opinions I would be out on the street with a shopping cart. Won’t hear any complaints from me.

Chris Noble (profile) says:

Re: No Comment - Really??

  1. You don’t have that long to live.
    2. You’re still entitled to bear arms, should you find yourself in the street, having a standoff with the government.
    3. You’ve reached the age where you can get away with saying just about anything you want; and get away with it.
    4. People expect you to have achieved the pinnacle in wisdom and morality – and you’d prefer to “take it on the chin” for a piece of bread?
    Communism is similar in practice.

    Everybody wants to eat.

    That’s the problem, we give them the power. The minute 50% of this country decides they’ve had enough – it could effectively be over. The majority doesn’t have to observe repressive unconstitutional authority. Majority is authority.
    Petition a vote; remove unconstitutional activities; assign citizen oversight – and use the mobs strength in numbers (The Majority) to peacefully, forcefully, pull the plug on the NSA.

    Of course they could call out the Military and National Guard right?? But that would be their nail in the coffin – remember; half of those serving (theoretically) disagree with the current authority as well. Our military won’t wage full blown war with ourselves; ever.

    We need to abandon this antiquated policy of voting for political representatives – as proxy’s for true democracy; and start commandeering the authoring of the laws ourselves.

    Won’t work?? Marijuana Law reform was led by the people; not the politicians – they had something to lose. A mere 250,000 individuals signed a petition to have the legalization of marijuana in California be decided by the voters and the rest is history. It failed, but the idea flourished. We can petition to have a vote on anything . Quit belly-aching that the politicians aren’t getting the job done…. duh… Write the Bill, and we’ll all sign it. Then, you will have fulfilled your duty as the 4th branch of government, that will lay silent no more.

    Our Forefathers couldn’t have imagined in their wildest dreams the challenges their consititution would find itself facing today. They could only have hoped that their legacy and their heritage would cultivate the same courage, moral integrity and intelligence required; if and when the day came for us to define our own unalienable rights; in our own time, with our challenges and the trespasses we face; in our time. And we hope our childrens children continue to carry that torch as well…. but they won’t have that opportunity if we no longer have a torch to hand them.

    This isn’t going to be pretty. Prepare yourselves; dig deep; and do what is right – do what is American.

    And F*** these bastards that tried to take it all away. I think some criminal RICO charges and some long sentences would be the ONLY appropriate measures available to serve as a punishment for their dereliction; and as a deterrent for future leaders. That goes for the politicians, police, FBI, CIA, NSA, president and possibly the justices..One big house cleaning; and a new set of rules (which look a lot like the old rules).

    They failed to act to protect our constitutional rights, and that is their solemn duty. They will get away with it if we fail to ACT too…in which case – we are just as complicit. Who doesn’t get it? This is war folks… and we’re losing. All of your ranting and raving, your song and dance… is not enough. This is no time for half measures…It’s time to step it up.

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