FISA Court Finds The FBI Is Still Violating The Fourth Amendment With Its Abuse Of NSA Collections

from the no-surprises-here dept

The NSA isn't the only agency to abuse its surveillance powers. The FBI's ability to access unminimized data harvested by the NSA has resulted in abuse after abuse, as the FBI loves to use the massive data haul to perform "backdoor searches" of its domestic targets.

This concern has been raised repeatedly, most notably by Sen. Ron Wyden, who has been calling out surveillance abuses for years -- specifically calling out these backdoor searches and hinting (strongly) that they are much more prevalent than most people believed. Nothing much has been done about it, other than multiple federal agencies suggesting they too should be put on the ever-growing list of entities with access to the NSA's multiple collections.

A FISA Court opinion released by the Office of the Director of National Intelligence (ODNI) details even more abuse of the NSA's Section 702 collections by the FBI. When you give an agency the power to dig into massive amounts of data with minimal oversight, abuses will happen. But this goes further than "inadvertent" collections or erroneous access of unminimized data. This ruling [PDF] -- first reported on by the Wall Street Journal -- shows the FBI treats sensitive collections as its personal playground.

The October 2018 court ruling identifies improper searches of raw intelligence databases by the bureau in 2017 and 2018 that were deemed problematic in part because of their breadth, which sometimes involved queries related to thousands or tens of thousands of pieces of data, such as emails or telephone numbers. In one case, the ruling suggested, the FBI was using the intelligence information to vet its personnel and cooperating sources. 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.

In other instances, the court ruled that the database had been improperly used by individuals. In one case, an FBI contractor ran a query of an intelligence database—searching information on himself, other FBI personnel and his relatives, the court revealed.

The partially-redacted, 138-page opinion makes it clear the FBI has frequently abused its access to the NSA's surveillance collections, which include emails, phone numbers, and a host of other digital detritus. Using collections authorized only to be used for national security purposes to perform security reviews of FBI personnel is obviously contrary to the intention of the program -- a purpose that is always reiterated loudly any time someone suggests surveillance should be curtailed. This opinion vindicates Wyden's incessant demands the FBI come clean about its backdoor searches. Wyden argued the FBI abused this power frequently. This opinion makes it clear the FBI abuses its "backdoor" access to domestic data constantly.

The weirdest thing is the Trump DOJ argued in court the program the FBI abused cannot be modified without harming the security of the nation. Yep, the administration that claims the "Deep State" is out to get it showed up in court to argue the Deep State should not have its power curtailed.

The court rejected this faulty premise. It also pointed out how severely any misuse of this power contains the potential to harm dozens, if not thousands, of people. Considering the breadth of the collection, running a single improper search returns hundreds, if not thousands, of records the FBI has no business retrieving. Using the database to vet employees or perform natsec vanity searches does not comply with the restrictions on the FBI's searches, which are only supposed to return data related to criminal activity (and then only certain crimes) and/or foreign intelligence information.

As usual, Sen. Ron Wyden was the first to go on record criticizing the FBI and its backdoor searches following the release of the FISA opinion.

Last year, when Congress reauthorized Section 702 of FISA, it accepted the FBI's outright refusal to account for all its warrantless backdoor searches of Americans. Today's release demonstrates how baseless the FBI's position was and highlights Congress' constitutional obligation to act independently and strengthen the checks and balances on government surveillance. The information released today also reveals serious abuses in the FB's backdoor searches, underscoring the need for the government to seek a warrant before searching through mountains of private data on Americans. Finally, I am concerned that the government has redacted information in these releases that the public deserves to know.

Wyden makes good points. And they're points he's made for years. Unfortunately, the FBI continues to do the stuff it shouldn't and the public has to read between the redactions in an (often vain) attempt to see what's being done to them in the name of "national security."

The abuses will continue until Congress or the FISA Court decide they've seen enough. While both entities have chastised agencies with access to NSA collections, neither have taken any action that will head off future misuse of surveillance databases in the future. We're a reactionary nation when it comes to surveillance abuse and that's just not going to prevent future abuses. But that's the nature of the national security beast. No one's allowed to know what's going on until after everything bad has happened.

Filed Under: 4th amendment, backdoor searches, fbi, fisa court, fisc, nsa, odni, ron wyden, vanity searches


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  • icon
    Anonymous Anonymous Coward (profile), 9 Oct 2019 @ 7:53am

    Depends upon ones definition of 'national security'.

    "...the FBI was using the intelligence information to vet its personnel and cooperating sources."

    That is in the interest of national security. The problem comes in the interpretation of the data found. This is explicitly shown in that the process failed to exclude those people who were not only doing the illegal searches, but their supervisors as well. Then there is the question of cooperating sources who helped build cases against marginal folks in the FBI's sting operations.

    What's not to like, from the FBI's standpoint?

    reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 9 Oct 2019 @ 9:36am

    Oh look... my shocked face.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2019 @ 9:43am

    What are the consequences?

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 9 Oct 2019 @ 9:47am

      Re:

      While 'evidence' collected might not be allowed in courts, there is always parallel construction. Beyond that, re-read the last paragraph in the article.

      So, for now, nothing.

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 9 Oct 2019 @ 9:45am

    So..

    You want national Policing agency NOT to share data with Another National policing agency?..

    Remember 911? and all the Bitching about Who did what and who didnt pass along CERTAIN data??

    Just cause 1 group missed certain data, the other group may have picked it up..and has it stored.
    HOw would it be, that the State and county had a missing person.. Looked all over and didnt find them.. but the Fed Had certain info on certain people allowed into this country. And the Probable happenings of a lost person.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 9 Oct 2019 @ 9:51am

      Re: So..

      You're confusing departments sharing intel with invading privacy. They aren't the same thing.

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 10 Oct 2019 @ 1:39am

        Re: Re: So..

        So both agencies need to do things with no assistance from other agencies that do the same types of regulation...
        Might as well tell your doctor that he cant have the info from your previous doctor cause its private.

        reply to this | link to this | view in chronology ]

        • icon
          ECA (profile), 10 Oct 2019 @ 1:41am

          Re: Re: Re: So..

          I KNOW..
          you go into the State DMV and tell them they cant give the Insurance company any info... And they cant check the previous State for your records...try that.

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Oct 2019 @ 11:31am

    Remember everyone in Congress has been surveiled too

    The FBI now has access to some of the blackmail that can be used on the current generation of congresspersons. All of the drug deals, cheating, and other illegal activities are available in a nice neat package for use whenever anyone even thinks about curtailing the access that the FBI deams vital to the survival of the nation.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 9 Oct 2019 @ 11:45am

    But we can still trust the FBI with encryption back doors, right?

    reply to this | link to this | view in chronology ]

  • identicon
    Whoever, 9 Oct 2019 @ 3:22pm

    Still waiting

    Still waiting for one of these "Originalist" judges to show me where the "National Security exception" is written into the Constitution.

    reply to this | link to this | view in chronology ]

    • identicon
      A Guy, 9 Oct 2019 @ 3:26pm

      Re: Still waiting

      Insurrection clause, power to declare war or treason clause I would guess.

      Either way there's almost no chance normal citizens have done enough to trigger it.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Hero, 9 Oct 2019 @ 4:07pm

    I thought the USA Constitution is all that's needed to protect national security.

    reply to this | link to this | view in chronology ]

  • identicon
    Personanongrata, 9 Oct 2019 @ 7:53pm

    Fishing is Boring, Unless Your Trolling for Evidence with FBI

    FISA Court Finds The FBI Is Still Violating The Fourth Amendment With Its Abuse Of NSA Collections

    What sanctions will the Constitution shredding fractions of americans at FBI suffer for abusing their authority in conducting illegal surveillance while trolling NSA's Section 702 collections for evidence of a crime?

    reply to this | link to this | view in chronology ]


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