FBI Used Section 702 Surveillance Powers To Spy On Protesters, Crime Victims, And Political Party Donors
For as long as the FBI has had access to NSA collections under its Section 702 authority, the FBI has abused this access. Section 702 allows the NSA to collect content and communications via upstream" channels. It's a powerful dragnet and one that is supposed to be foreign-facing, so as not to violate the rights of Americans whose communications might be swept up in the data haul.
The NSA can't prevent the inadvertent collection of US persons' communications. That works to the FBI's advantage. It has repositioned itself as a counterterrorism agency. That repositioning allows it to say things about national security" and preventing terrorist acts" when questioned by the FISA court and federal judges - the sort of phrases that tend to prompt less scrutiny from this crucial part of the checks and balances meant to prevent the government from engaging in abusive behavior.
For the first time in its history, the FBI appears to be making an effort to discourage surveillance abuses via this particular authority. But even as it moves towards something bearing a passing resemblance to responsibility, more information continues to come to light that appears to indicate the FBI can never be trusted to use this surveillance authority responsibly. Perhaps the solution is what's being seriously considered now that the FBI has managed to thoroughly piss off the party holding the most Congressional power at the moment: the expiration of this surveillance authority.
This latest revelation, coming to us via Devlin Barrett and the Washington Post, will only add more fuel to the partisan fire and perhaps see this collection authority terminated for purely political purposes.
The FBI has misused a powerful digital surveillance tool more than 278,000 times, including against crime victims, Jan. 6 riot suspects, people arrested at protests after the police killing of George Floyd in 2020 and - in one case - 19,000 donors to a congressional candidate, according to a newly unsealed court document.
FBI officials say they have already fixed the problems, which the agency blamed on a misunderstanding between its employees and Justice Department lawyers about how to properly use a vast database named for the legal statute that created it, Section 702 of the Foreign Intelligence Surveillance Act (FISA).
The FBI is given billions of dollars a year to be the best it can be. Apparently, almost none of that goes to properly training its agents and analysts. A one-year aberration might be considered a failure of remedial training. A year-after-year record of surveillance abuses suggests the FBI simply doesn't care whether or not it abides by the law. And while that might seem pretty depressing, it makes the FBI no different and no better than hundreds of local law enforcement agencies who feel the same way about the law and Constitution.
By misusing Section 702 collections, the FBI can spy on Americans without having to bother with securing a warrant. Instead, it can ask the FISA court to give it permission to search NSA databases for supposedly-foreign communications and content and proceed to target Americans without securing the domestic-facing warrants it's supposed to be using when it seeks to obtain US persons' communications. A FISA warrant authorizes presumably foreign-facing surveillance. That allows the NSA to do what it does. The FBI is using a backdoor in the law to engage in continual violations of the Fourth Amendment.
While the FBI can certainly demonstrate a legitimate need to target suspected insurrectionists for federal crimes, even its secondhand surveillance of January 6th suspects is, at best, skating along the extreme edges of the Constitution. The FBI has plenty of purely domestic options to obtain communications and data needed to further January 6th investigations. The fact that it chose to perform this task utilizing Constitution-skirting powers meant to target those with limited Constitutional protections (i.e., foreign criminal suspects) shows it really doesn't care what laws it has to abuse to achieve its ends.
The fact that it used the same powers to target people engaged in activities protected by the First Amendment indicates it has just as little respect for the First as it does the Fourth.
The heavily-redacted 127-page decision [PDF] from the FISA court makes it clear (or at least as clear as a heavily-redacted decision can be) the FBI exceeded its Section 702 authority for reasons the agency is unable to clearly explain. Why the FBI chose to target arrested anti-police violence protesters in the wake of George Floyd's murder doesn't appear to have been adequately explained.
That search was done, officials said, to see if there was counterterrorism information about those individuals. When questioned about the searches later, FBI officials said it was reasonable for agents to think the searches would return foreign intelligence. The parts of the court papers describing that effort have significant redactions, making it unclear why the FBI developed its theory.
It also doesn't seem to have valid, lawful explanation for its decision to avail itself of this foreign-facing collection to vet potential recruits for its always-expanding army of snitches.
Around that same time, an FBI analyst conducted 656 queries of FISA information, apparently because the bureau was considering whether to use people as informants and wanted to check for any derogatory information, the court filing says. The FBI did not have any reason to believe that agents would find such information, officials said.
This is because it's there" thinking. If the FBI did not have access to Section 702 collections, it certainly wouldn't have performed these searches. But, because it did have access, it could perform the Constitution-violating searches and ask for forgiveness later.
And it's even worse than the examples pointed out above. FBI analysts and investigators felt so comfortable engaging in potential rights violations, they routinely accessed Section 702 collections for the most specious of searches.
Officials also found a long pattern between 2016 and 2020 in which the FBI conducted FISA searches about individuals listed in police homicide reports, including victims, next-of-kin, witnesses, and suspects," according to the court opinion.
This is the sort of thing that happens when no one fears any repercussion for engaging in illegal (or, at the very least, highly questionable) searches of collections that are supposed to be limited to identifying and surveilling suspected foreign terrorists and/or other actual threats to national security. The FBI treated the Section 702 collection as just another database it could dig through whenever it felt like it for reasons that never approached the national security" justifications it has offered in explanation.
And those are the smaller batches of questionable searches. The Washington Post article notes the FBI performed more than 23,000 separate searches on suspected January 6th Capitol raid participants. At least there was some sort of national security nexus in those cases. But it also ran a batch query" on 19,000 donors to a Congressional campaign." The FBI apparently believed this was justified because it believed the (unnamed) Congressional candidate might be the target of foreign influence." It failed to explain why only eight of the 19,000 identifiers produced any links to foreign entities or what the FBI did with all the extraneous communications it obtained with this untargeted search.
As mentioned above, abuses finally appear to be dropping. But that seems just as self-interested as the current push to let Section 702 expire. Congressional members seeking to end this collection are only doing so because they feel (correctly or incorrectly) they're being targeted by the FBI for political reasons. And the FBI only appears to be greatly restricting access to this collection in hopes of convincing members of Congress it truly cares about reducing abuse by its agents and analysts. But if it manages to secure a reauthorization, chances are it will go right back to abusing its access. And Congress will find a new chew toy to amuse itself with, allowing the FBI to continue this abuse up until the expiration date.