The FBI’s Most Controversial Surveillance Tool Is Under Threat

An existential fight over the US government’s ability to spy on its own citizens is brewing in Congress. And as this fight unfolds, the Federal Bureau of Investigation’s biggest foes on Capitol Hill are no longer reformers merely interested in reining in its authority. Many lawmakers, elevated to new heights of power by the recent election, are working to dramatically curtail the methods by which the FBI investigates crime.

New details about the FBI’s failures to comply with restrictions on the use of foreign intelligence for domestic crimes have emerged at a perilous time for the US intelligence community. Section 702 of the Foreign Intelligence Surveillance Act (FISA), the so-called crown jewel of US intelligence, grants the government the ability to intercept the electronic communications of overseas targets who are unprotected by the Fourth Amendment.

That authority is set to expire at the end of the year. But errors in the FBI’s secondary use of the data—the investigation of crimes on US soil—are likely to inflame an already fierce debate over whether law enforcement agents can be trusted with such an invasive tool.

Central to this tension has been a routine audit by the Department of Justice’s (DOJ) national security division and the office of the director of national intelligence (ODNI)—America’s “top spy”—which unearthed new examples of the FBI failing to comply with rules limiting access to intelligence ostensibly gathered to protect US national security. Such “errors,” they said, have occurred on a “large number” of occasions.

A report on the audit, only recently declassified, found that in the first half of 2020, FBI personnel unlawfully searched raw FISA data on numerous occasions. In one incident, agents reportedly sought evidence of foreign influence linked to a US lawmaker. In another, an inappropriate search pertained to a local political party. In both cases, these “errors” were attributed to a “misunderstanding” of the law, the report says.

At some point between December 2019 and May 2020, FBI personnel conducted searches of FISA data using “only the name of a US congressman,” the report says, a query that investigators later found was “noncompliant” with legal procedures. While some searches were “reasonably likely to return foreign intelligence information,” investigators said, they were also “overly broad as constructed.”

In another incident, the FBI ran searches using the “names of a local political party,” even though a connection to foreign intelligence was “not reasonably likely.” The DOJ explained the errors away by saying FBI personnel “misunderstood” the search procedures, adding they were “subsequently reminded of how to correctly apply the query rules.” These are the mistakes that will ultimately serve as ammunition in the coming fight to diminish the FBI’s power.

Elizabeth Goitein, senior director of the Brennan Center for Justice’s national security program at New York University School of Law, says that while troubling, the misuse was entirely predictable. “When the government is allowed to access Americans’ private communications without a warrant, that opens the door to surveillance based on race, religion, politics, or other impermissible factors,” she says.

Raw Section 702 data, much of which is derived “downstream” from Internet companies like Google, is regarded as “unminimized” when it contains unredacted information about Americans. Spy agencies such as the CIA and NSA require high-level permission to “unmask” it. But in what privacy and civil liberties lawyers have termed a “backdoor search,” the FBI regularly searches through unminimized data during investigations, and routinely prior to launching them. To address concerns, the US Congress amended FISA to require a court order in matters that are purely criminal. Years later, however, it was reported that the FBI had never sought the court’s permission.

FISA surveillance came under heightened Republican criticism following revelations that, in October 2016, a secret court had authorized a wiretap on a former campaign aide of then-presidential nominee Donald Trump during the FBI’s investigation into election meddling by Russia. While an inspector general’s report later found sufficient cause for the investigation, the wiretap application was haphazardly approved in the face of numerous FBI errors.

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