FBI Misused Foreign Surveillance Powers To Investigate Domestic Crimes
As recently as 2019, the FBI used surveillance tools intended for tracking foreign terrorists and spies in unrelated domestic crime investigations involving Americans without even seeking secret warrants from the Foreign Intelligence Surveillance Act (FISA) Court.
The information comes from a recent certification report
from the FISA Court itself, written in November but declassified and released
by the Office of the Director of National Intelligence Monday.
The report documents 40 instances in which the FBI secretly
accessed data collected not about foreigners but about American citizens for
investigations of "healthcare fraud, transnational organized crime,
violent gangs, domestic terrorism involving racially motivated violent
extremists, as well as investigations connected to public corruption and
bribery."
Though it is the FBI's job to investigate such crimes, in
these instances they did so using data collected under the Section 702
authorities of FISA, which does not permit targeting Americans for these types
of investigations. Section 702 specifically focuses on unwarranted searches of
foreign targets because they don't have the protections of the Fourth Amendment
and therefore their communications can be collected and reviewed. Even with
that clearance, the FISA Court exists to make certain that the FBI and National
Security Agency do not abuse their access against Americans—which is exactly
what happened here.
When Congress renewed Section 702's authorities in 2018,
they actually codified permission to use this part of the law for domestic
surveillance for certain types of crimes, like human trafficking. Yet the FBI
still misapplied it.
Nevertheless, despite these violations of procedure and of
Americans' privacy, the FISA Court went ahead and renewed federal certification
for this Section 702 surveillance. The explanation as to why actually goes back
to a completely different FBI violation—when the agency screwed up its search
warrants to the FISA Court when surveilling Carter Page, former Trump campaign
aide. As part of the investigation into whether Donald Trump or people in his
orbit had been compromised by Russian agents, they got permission to wiretap
Page's communications. But the FBI cut corners on the warrant applications and
omitted information that likely would have raised questions as to whether the
surveillance was justified. And a subsequent audit from the Office of the
Inspector General for the Department of Justice found that the FBI routinely
made errors in its warrant requests to the FISA Court when asking to surveil
Americans.
After those problems were publicly revealed in 2019, the
FISA Court ordered the FBI to submit a formal plan to fix them. Director Chris
Wray responded with a 40-point training plan to correct FBI surveillance
procedures so that they're compliant with privacy protections for Americans.
This latest FISA Court report notes that these newly
discovered violations took place before Wray's training program was
implemented. So, as FISA Court judge James Boasberg explains in the report,
they're going to assume—until they discover otherwise—that Wray's reforms fixed
these problems.
I'm not kidding. Boasberg writes, "the Court finds that
the proposed procedures, as reasonably expected to be implemented, comply with
applicable statutory and Fourth Amendment requirements." (Emphasis mine.)
That feels like a massive shrug, given the number of
mistakes the FBI has been making in both submitting proper FISA warrants and in
snooping through Americans' data without warrants. But the recertification in
this report comes with strings attached. Boasberg is ordering quarterly reports
detailing each instance in which FBI personnel accessed Section 702–acquired
information about an American that wasn't for the purpose of foreign
intelligence gathering, what the information is used for, precisely how it happened,
and whether it was consistent with their 702 authorities.
The increased transparency about how this FISA Court
surveillance works—due to both reforms that followed Edward Snowden's
disclosures as well as attention brought by the investigation of Trump's
campaign—has been a boon to the public in understanding that this system is far
from perfect. As we can see, even with this more visible oversight, the FBI
keeps making mistakes that violate Americans' Fourth Amendment protections
against warrantless searches. It's something to remember whenever anybody
attempts to argue that the FBI needs more authority or more laws to combat
domestic terrorism. It is not properly respecting the limits on the power it
already has.
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