The FBI misused controversial surveillance powers more than 278,000 times between 2020 and early 2021 to conduct warrantless searches on George Floyd protesters, January 6 rioters who stormed the Capitol, and donors to a Congressional campaign, according to a newly unclassified court opinion.
On Friday, the US Foreign Intelligence Surveillance Court made public a heavily redacted April 2022 opinion [PDF] that details hundreds of thousands of violations of Section 702 of the Foreign Intelligence Surveillance Act (FISA) — the legislative instrument that allows warrantless snooping.
The Feds were found to have abused the spy law in a “persistent and widespread” manner, according to the court, repeatedly failing to adequately justify the need to go through US citizens’ communications using a law aimed at foreigners.
Section 702 is supposed to permit the federal government to spy on communications belonging to foreign individuals outside of America, theoretically to prevent criminal and terrorist acts. Those communications can sweep up phone calls, texts and emails with US persons, however, and are stored in massive databases. The FBI, CIA and NSA can search these communications without a warrant.
In the doublespeak world of American intelligence, such information isn’t technically stored; it’s only considered so if it’s actually used by analysts. And while foreign communications are fair game, the Feds can search about three levels down in data – ie, who the suspect talked to, and who their contact spoke to, and the next line in the communications link – so think Kevin Bacon levels of contacts.
Although the law is not supposed to be used to surveil American citizens, the government has historically used this data to monitor activists, journalists, and others without obtaining a warrant. These communications can then be used to prosecute people for crimes, and have been.
The police power is set to expire at the end of the year unless Congress renews it. With this looming deadline, the now-unclassified court documents add fuel to Section 702 opponents’ arguments that the government routinely abuses these warrantless searches.
“These abuses have been going on for years and despite recent changes in FBI practices, these systematic violations of Americans’ privacy require congressional action,” US Senator Ron Wyden (D-OR) said in a statement. “If Section 702 is to be reauthorized, there must be statutory reforms to ensure that the checks and balances are in place to put an end to these abuses.”
The court opinion details FBI queries run on thousands of individuals between 2020 and early 2021. This includes 133 people arrested during the George Floyd protests and more than 19,000 donors to a congressional campaign.
In the latter, “the analyst who ran the query advised that the campaign was a target of foreign influence, but NSD determined that only eight identifiers used in the query had sufficient ties to foreign influence activities to comply with the querying standard,” the opinion says, referring to the Justice Department’s National Security Division (NSD). In other words, there wasn’t a strong enough foreign link to fully justify the communications search.
For the Black Lives Matter protests, the division determined that the FBI queries “were not reasonably likely to retrieve foreign intelligence information or evidence of a crime.” Again, an overreach of foreign surveillance powers.
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Additional “significant violations of the querying standard” occurred in searched related to the January 6, 2021 breach of the US Capitol, domestic drug and gang investigations, and domestic terrorism probes, according to the court. It’s said that more than 23,000 queries were run on people suspected of storming the Capitol.
While the FBI has said it has implemented several changes to prevent Section 702 abuse, including better query training and stricter approval requirements for some “sensitive” searches, like those involving American elected officials and journalists, Section 702 opponents argue that the spying on US citizens won’t stop unless Congress enacts FISA report.
“Even with the long history of FBI misuse of FISA 702, these latest revelations should set off alarm bells across Congress,” Jake Laperruque, deputy director of the Center for Democracy and Technology’s Security and Surveillance Project, said in a statement.
“The systemic misuse of this warrantless surveillance tool has made FISA 702 as toxic as COINTELPRO and the FBI abuses of the Hoover years,” he added. “Absent a full overhaul of Section 702 and related surveillance powers, Congress should not allow the law to be extended past this year.” ®