from the Section-702:-never-not-abused dept
For the first time in a long time, the Intelligence Community is facing an uphill battle to getting one of its most invasive surveillance powers renewed. Not even during the heyday of the Snowden leaks has the IC seen this much resistance to a clear reauthorization of its Section 702 program.
This surveillance grabs everything it can from internet backbones, providing the NSA (and the FBI) with tons of data and communications. It’s a foreign-facing collection, so it’s not generally subject to constitutional restraints. But it does collect a bunch of US-based communications when US residents communicate with foreign persons.
Because of this, the NSA has made a series of mostly halfhearted efforts to reduce its “incidental” collection of US persons’ communications. It doesn’t appear to be able to reduce this over-collection by much. And the FBI is the primary beneficiary of this “incidental” collection.
The FBI has access to the NSA’s Section 702 collections. But it’s not generally supposed to be able to target US persons’, even if the collection allows that to happen. Since its inception, the FBI has never not abused its access to these collections to perform warrantless searches of US communications, even though the Fourth Amendment strictly forbids this.
The FISA court, which oversees foreign surveillance, has often criticized the FBI’s abuses. It has also ordered the FBI to alter its tactics to bring itself back in line with the Constitution. None of this has done much to alter the way the FBI does business. Until last year, FBI searches of 702 collections increased year over year. Its abuse of its search privileges has, for the most part, tracked with its increased access.
A recently released order from the FISA court only adds more ammo for congressional reps already inclined to let Section 702 expire. Jordain Carney has more details at Politico.
An FBI analyst improperly searched a government surveillance database last year using the last name of a U.S. senator, according to a newly declassified court document released on Friday.
The disclosure is included in the Office of the Director of National Intelligence’s release of a 117-page April order by the federal judiciary’s foreign intelligence surveillance court, which typically issues rulings in secret. The surveillance court’s ruling notes more broadly that, despite the improper search in 2022, “there is reason to believe that the FBI has been doing a better job” adhering to its own rules for using warrantless surveillance.
This is, unfortunately, what we’ve come to expect from the FISA court. While acknowledging the FBI continues to repeatedly abuse this access to perform warrantless searches targeting US persons, the FISA court has regularly refused to sanction or otherwise limit the FBI’s access. Instead, it criticizes the FBI’s actions — often couched in exculpatory language like the “FBI has been doing a better job” seen above — before allowing it to continue to engage in Section 702-enabled constitutional violations.
For whatever reason, Politico has decided it can’t publish the publicly available FISA court order [PDF] along with its coverage of the decision. But anyone with a bit of internet can easily find it at the ODNI’s “IC On The Record” site, which routinely posts declassified court orders and other information related to the IC’s work.
The order — delivered to the IC in April but only recently made public — opens with this dour, but accurate, assessment of the FBI’s Section 702 activities.
The FBI has not consistently complied with the three-part querying standard articulated by the Government.
No surprise there. That’s been well-documented, and not just by the court that continually forgives the FBI’s perpetual trespasses. That’s followed by a tacit admission the court simply isn’t capable of controlling the FBI.
The Court expected that a requirement for FBI personnel to document their basis for believing that a query using a U.S.-person query term satisfied the querying standard before accessing Section 702-acquired contents information retrieved by the query would help ensure that they recalled and thoughtfully applied the guidance and training they had received on the standard.
Ever the disappointed parent, the court notes the FBI took this directive and turned it into something ineffectual. (Emphasis in the original.)
As revised, the procedures require “FBI personnel to provide a written statement of facts showing that the query was reasonably likely to retrieve foreign intelligence information or evidence of a crime” and the FBI to maintain records of such statements of facts “in a manner that will enable oversight by NSD and ODNI.” But the primary means of implementing those requirements is for FBI personnel to select from a pre-set menu of broad, categorical justifications, not to prepare a case-specific explanation of why the standard is met for a particular query.
And that’s how the FBI adds to its own Section 702 reauthorization woes. If analysts are able to apply blanket rationales for backdoor searches, sooner or later, the FBI is going to be caught snooping on people who actually have the power to terminate the FBI’s access to these collections, as well as end the collections themselves. Back to Carney and Politico:
According to the newly declassified court document, in June 2022, an FBI analyst conducted four searches of information collected under the warrantless surveillance program “using the last names of a U.S. Senator and a state senator.” In both cases, the analyst had information showing that the two lawmakers were being targeted by a foreign intelligence service.
Rep. Darin LaHood (Illinois) has stated he believes he’s the one who was targeted by these apparently illegal searches. The FBI has yet to confirm or deny this. The released opinion possibly confirms this assertion, but there’s no way to tell because the court and the ODNI have collaborated to redact any information that might identify which US person was improperly targeted.
And that’s ridiculous. Lots of information about the Section 702 collection (what it does, where it collects from) has been made public. So has plenty of information about the FBI’s continual abuses. And yet, information that would provide the public with new information about abuses of government power has been withheld, which means this release only confirms what we already know.
The black-bar truncation of this order has provoked at least one representative to complain about this unnecessary opacity. Senator Ron Wyden — who has always been willing to call out the government for protecting itself at the expense of the governed — released this statement on his official website:
“For years, as government officials have provided misleadingly narrow testimony about who is targeted under Section 702, I have pushed to get the government to come clean. The revelation that 702 is used against ‘foreign governments and related entities’ directly impacts Americans’ privacy, as American journalists, businesspeople, students and others all have legitimate reason to communicate with foreign governments. The fact they can be swept up in 702 collection further highlights the need for reforms to protect their privacy.
“While I commend the administration for these releases, it remains the case that information the public needs in advance of 702 reauthorization has been unnecessarily redacted.”
The government shouldn’t be allowed to hide pertinent details from the public. But it does so constantly. And because the public (and their representatives) are forced to work with incomplete information, they’re not able to contradict misleading statements by IC officials or know who has been affected by the FBI’s constant abuse of its Section 702 access.
Wyden’s statement doesn’t just refer to the order reported on by Politico. It also refers to the declassified documents involving Section 702 that were released by the ODNI along with the court order. These detail acquisition and access, but only in as much detail as the government believes we, the people, should be privy to. And that’s what Wyden is calling out: the redaction of any information that might help the public understand why the FBI abuses its power so frequently, as well as why it has yet to be prevented from abusing this access dozens — if not hundreds — of times a year.