HideTechdirt is off for the long weekend! In the mean time, check out our new face masks and other gear on Threadless »
HideTechdirt is off for the long weekend! In the mean time, check out our new face masks and other gear on Threadless »

National Intelligence Report Shows The FBI Never Gets Warrants For Its Backdoor Searches Of NSA Collections

from the 'shows'-is-perhaps-a-strong-word-for-something-hidden-17-pages-in... dept

The Intelligence Community's latest transparency report [PDF] contains even more evidence of the FBI's inability to follow the law when helping itself to the NSA's collections. The infamous "backdoor searches" of the NSA's Section 702 collections -- which sweep up millions of electronic communications every year -- have always been a problem for the FBI. (But it's a problem the FBI likely doesn't mind having.)

Communications and data related to US persons are supposed to be minimized before being accessed by the FBI. The FBI may have permission to access this collection, but the impossible-to-stop "incidental" collection of US persons' communications means the FBI is supposed to use warrants when searching the data using US person queries. This mandate only applies to certain cases: criminal investigations not related to national security. The built-in minimization procedures are supposed to take care of the rest of the agency's backdoor searches, supposedly ensuring the FBI can't use a foreign-facing communications collection to spy on Americans.

In practice, this almost never works. It certainly didn't work in every case listed in the ODNI's latest report. Elizabeth Goitein, writing for Just Security, says the report contains more depressing admissions from the FBI. Every time the FBI has accessed US persons communications in cases where it's required to get a warrant, it hasn't bothered to get a warrant.

As minimal as this requirement is, the 2019 statistical transparency report reveals that the FBI has failed to comply with it in literally every relevant case. According to a table in the report, there were six instances in 2018 in which the FBI reviewed the contents of Americans’ communications after conducting a backdoor search in a criminal, non-national security case.

[...]

The same table indicates that the FBI obtained a warrant to review the contents of those communications exactly zero times. Similarly, for 2019, the table lists one instance in which the FBI ran a backdoor search in a criminal, non-national security case and reviewed communications content, but zero instances in which it obtained a warrant.

There's another caveat that could have salvaged these warrantless backdoor searches, making them compliant with the law. But, nope. This one doesn't work either.

[T]he requirement to obtain a warrant applies only when the investigation has reached a particular stage (namely, when it is designated as a “predicated” investigation). A footnote in the ODNI report, however, states that the Department of Justice reported “each instance” to the Foreign Intelligence Surveillance Court as a “compliance incident.” That means the warrant requirement applied—and was violated—in each case.

The news that the FBI violated the warrant requirement in every backdoor search fitting these parameters should have been front page news for the Office of the Director of National Intelligence. But the ODNI apparently doesn't want this sort of information to be easily discernible in its ironically-named "Transparency Report." As Goitein points out, this news was buried in a footnote and inferred from a table on page 17. No public statement has been made by the ODNI or the FBI about its inability to secure warrants when warrants in the few instances are required.

Some may shrug this off as being of limited importance because there were only six violations. But that number only covers a single month in 2018 and those were only discovered because the DOJ decided to engage in some oversight for a change.

It's not like it's tough to adhere to the minimal demands Congress has made of the FBI when searching 702 collections. But apparently the FBI isn't up to it.

[T]here is nothing complicated about the requirement Congress imposed; it should have been an easy matter to educate FBI agents about their new obligation. There is no imaginable excuse for a compliance rate of zero percent.

The requirement has been on the books since the beginning of 2018. The FBI still couldn't find a way to comply with the warrant mandate several months later. This isn't acceptable, not when the agency is using a foreign-facing collection that's subject to almost zero oversight to search for communications incidentally swept up by the NSA's dragnet. It has continually abused this privilege to search unminimized communications and engage in domestic surveillance while pretending to be only interested in foreign terrorists. The FBI is a serial domestic abuser. For too many years, Congress and the FISA Court have been its enabler.

Filed Under: 4th amendment, backdoor searches, constitution, fbi, nsa, surveillance, warrants


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    Anonymous Coward, 12 May 2020 @ 3:46am

    The FBI hasn't held up well to the cyber/LSD/laser garbage, whatever you want to call it, based on my experience with it.

    Obviously, it's hard to blame them for foreign terrorists from asia (india/china).

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

  • icon
    JoeCool (profile), 12 May 2020 @ 5:47am

    Reason

    Don't you watch Criminal Minds? They don't have time to get a warrant or the perp will kill again/escape. So not getting a warrant is clearly for our protection. You want to be safe, right? ;)

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

    • identicon
      Anonymous Coward, 12 May 2020 @ 6:12am

      Re: Reason

      This the same reasoning that says that the bombs these people use will have easily found countdown displays and color coded wires, right?

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

  • icon
    Norahc (profile), 12 May 2020 @ 7:29am

    The FBI...backdooring the Constitution with no lube since the Hoover era.

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

  • icon
    Koby (profile), 12 May 2020 @ 7:50am

    Shrug

    Some may shrug this off as being of limited importance because there were only six violations

    Others of us may shrug this off as standard operating procedure by the FBI. The FBI can be reasonably assumed to have violated law and internal procedures most of the time. At this point, it would be interesting news to learn that any of America's spy agencies actually DID follow procedure and get a warrant.

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

  • icon
    That One Guy (profile), 12 May 2020 @ 11:16pm

    There is, but it's not a good one...

    There is no imaginable excuse for a compliance rate of zero percent.

    There is actually, it's just not a very good or comforting one: The FBI knows that there is a roughly zero to nil chance of any punishment for ignoring the rules set forth, and as such sees no reason to bother following them.

    When not following the rules is easier, takes less work and carries no risk should they get caught the question is not why they are doing so but why wouldn't they?

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.