Congressional Rep Who Discovered His Info Was Illegally Searched By The FBI Likely Has No Legal Remedy
The FBI has long enjoyed its close relationship with the NSA... or at least the NSA's collections. Data and communications collected under the NSA's Section 702 program contain plenty of incidental" snooping on Americans. That's because even though it's a foreign-facing collection, Americans who communicate with people outside of the United States are swept up in the dragnet.
The FBI has a backdoor to search this collection for information relevant to its investigations. It's supposed to strictly limit access to US persons' communications when searching this database, but it has proven over the last decade that it's simply unable to keep itself from abusing this access.
The FBI's casual abuse of this access was again highlighted earlier this month, when Representative Darin LaHood chose to use his speaking time at a House Intelligence Committee meeting to discuss something very personal.
Unfortunately I believe that the FBI does have a significant trust issue with the members of Congress," said LaHood, citing a recently declassified government report, which found misuses of the Section 702 authority.
A footnote of the report describes an incident in which an intelligence analyst repeatedly searched 702 datausing only the name of a U.S. congressman."
[...]
LaHood added that he had reviewed a classified summary of the incident and it is my opinion that the member of Congress who was wrongly queried multiple times solely by his name was in fact me..."
The FBI - in the report - maintained the search was pretty much innocuous, despite the DOJ and DNI (Director of National Intelligence) calling the detailed searches overly broad." FBI Director Chris Wray then pointed out the FBI is doing fewer of these searches - 93% fewer searches in 2022 than in 2021. He failed to explain why LaHood's name was searched repeatedly, much less why analysts were given access to unminimized data pertaining to the congressional rep.
That's not great. But it's the standard operating procedure for the FBI, which routinely is forced to answer questions about its misuse of its access to Section 702 collections. Rather than provide answers, the FBI (repeatedly) swears this is the year it will finally stop these things from happening. Rinse and repeat for the nine years and counting since the Snowden leaks made this stuff public knowledge.
The FISA court hasn't done much to keep the government from abusing its surveillance tools. And neither has the regular court system, as the EFF notes. The FBI is clearly in the wrong. But being illegally surveilled by national security programs is a non-starter in the federal court system.
[N]either Rep. LaHood nor anyone else illegally spied upon will likely get a chance to seek a remedy in a court. That's not just because 702 is poorly drafted and has been even more poorly executed. It's because of how governmental secrecy has now metastasized to completely prevent anyone from stopping illegal NSA spying of them, much less get any other legal remedy.
Quite simply, governmental secrecy now renders moot many of the accountability and oversight mechanisms for national security surveillance that exist on paper in FISA as well as in the U.S. constitution.
The EFF knows what it's talking about. Fourteen years of litigation in the Jewel v. NSA lawsuit came to a unceremonious end with the Ninth Circuit declaring the common law state secrets privilege prevented the government from being sued. The EFF appealed and the Supreme Court refused to grant it certification.
The same thing happened in the lawsuit brought against the NSA by Wikimedia. State secrets, said the courts. And the Supreme Court's recent rejection of this lawsuit's certification request means the appeals court ruling in favor of the government - and its state secrets" incantations - forecloses almost all lawsuits over illegal surveillance brought against the NSA and its beneficiaries.
But this can be changed. And it's people like Rep. LaHood that can do it, as the EFF points out. It can clarify its intention to allow people to seek redress for illegal spying, an option it created with FISA Section 1806(f). Rather than simply trusting the government's assertions about state secrets, the law allows the court to perform reviews of government submissions to determine whether or not the information at the center of the case is too sensitive to allow the lawsuit to continue. The invocation of the state secrets privilege shouldn't always result in the dismissal of a lawsuit, but it almost always does, even if the law provides courts with other options.
Congress can also limit illegal spying by limiting or ending the FBI's access to NSA collections. Even better, it could just let Section 702 expire, eliminating the source of the problem. As it stands now, lots of Republican congressional reps are upset with the FBI and its Intelligence Community buddies. Their motives may not be entirely pure, but even a vindictive expiration/overhaul is better than simply allowing Section 702 to continue operating in an unaltered state. That may not create a judicial remedy for citizens illegally spied on, but the end of 702 (or cutting the FBI's access off) would make this lack pretty much moot.
Whatever route is taken, something needs to be done. Otherwise, the government will continue doing what it's been doing for pretty much the entirety of history: illegally spying on citizens and walking away from lawsuits by invoking an apparently bulletproof privilege.