Activists Call BS On FBI’s Section 702 Abuse Band-Aid, Demand Major Reforms To Surveillance Power
It's renewal time again, and this time the snooper squad is facing unprecedented push back. Sure, a lot of it is politically motivated, what with the post-Trumpians still getting high on their own deep state" supply. Even as opportunistic as they are, they still have a point: some of their own have been subjected to some very questionable surveillance.
But there's plenty to be wary of, no matter which side of the political fence you're on. For one thing, the FBI has never not abused this surveillance power to perform backdoor searches of foreign-facing" collections to spy on American citizens who aren't supposed to be targeted under this authority.
There's been a recent downturn in abuses by the FBI, but that's more likely due to its reporting requirements, rather than any innate desire to be less abusive. When you've got to tell on yourself periodically, you tend to start focusing on the problems you've steadfastly refused to solve for years. Nothing looks better than some hint of compliance, and that's what the FBI is aiming for.
The push continues to give Section 702 a clean reauthorization that would do absolutely nothing to discourage future abuses. The Biden Administration recently offered up a very truncated parade of horribles in its pitch for a zero-reform re-up of this extremely powerful surveillance option.
On Monday,Joe Biden's administration circulated examples showing the US had used electronic surveillance under section 702 to catch fentanyl smugglers as well as the ransomware hackers who temporarily shut down the Colonial Pipeline Company in a 2021 cyber-attack that led to gas shortages along the eastern seaboard.
Sounds good, but the dragnet provides millions of opportunities for national defenders. And this says nothing about the continuous stream of FBI abuses no administration has been willing to address.
The FBI definitely doesn't want to lose access to this collection it has constantly accessed illicitly. In hopes of nudging legislators towards a clean reauthorization, it has presented a small list of weak, non-codified, self-imposed rules as a palliative.
Basically, the FBI is creating a three strikes" program for FISA violations. But there's no real limit to the number of strikes" an analyst can rack up during a 24-month period" (the FBI does not specify whether this is static or rolling). The first would trigger suspension of access, along with retraining and one-and-one counseling" with field office lawyers. Subsequent violations may result in permanent loss of access, reassignment, and/or referral to the FBI's Inspection Division. At no point does the agency even suggest someone might be fired for serial abuse.
It's better than nothing, but it's so barely better than nothing, it has already provoked a response from a whole bunch of accountability and rights activists. Here's the list of signatories to the statement [PDF] sent to the FBI telling it to try harder.
American Civil Liberties Union, Americans for Prosperity, Asian American Scholar Forum, Brennan Center for Justice at NYU School of Law, Center for Democracy & Technology, Defending Rights & Dissent, Demand Progress, Due Process Institute, Electronic Privacy Information Center, Freedom of the Press Foundation, Project for Privacy and Surveillance Accountability, Project On Government Oversight, and National Association of Criminal Defense Lawyers
The statement opens with a bang, letting the FBI know its anti-abuse sauce is exceptionally weak.
This is not a serious response. The government wants to rely exclusively on the same kind of internal safeguards that have completely failed to protect Americans' privacy time and time again, and has failed to meaningfully engage with the concerns expressed by lawmakers and the American public.
Simply put, this response is completely out of touch with both the level of abuse perpetrated by intelligence agencies and other serious threats to our privacy, like government agents tracking us through data brokers.
From there, the statement goes on to highlight the FBI's abuses of surveillance powers, as well as the government's general disinterest in protecting US citizens from backdoor searches and other forms of indirect domestic surveillance. At the very least, the groups point out, the FBI should have enacted a warrant requirement for these searches. That it hasn't done so shows it still feels it doesn't need to play by the long-established rules (Fourth Amendment, anyone?) as long as it's only digging into a foreign-facing" collection.
On top of the problems with the FBI, there are the problems with the FISA court - a (mostly) closed judicial operating system that still pretends it's impartial, even when almost all of its proceedings are non-adversarial. And when the collection targets" foreigners (as is the case with Section 702), the FISA court is rarely involved at all.
To that end, the group suggests it's time for Congress to do what the FBI won't. It should enact warrant requirements, prohibit the purchase of Americans' data via data brokers, ensure a stronger adversarial role in the FISA court, and limit the extent of the state secrets privilege that so often allows the government to duck lawsuits and/or respond to open records requests.
If nothing else, it is incredibly clear by now we can't just let Section 702 roll on unaltered. Something needs to be codified to deter the FBI's abuse of this collection because nothing else has worked. And, sure, the FBI is also willing to break laws. But it will have a much more difficult time getting itself out of this sort of trouble and, given enough lawbreaking, it may find itself cut out of the surveillance loop entirely.
These groups are right. The FBI is just saying things that sound repentant. But its actions over the past decade-plus have shown it's unwilling to actually stop doing the wrong things. Words are useless. Actions mean something. And what the FBI is offering here won't change a thing.