Stop us if you’ve heard this one before. The Foreign Intelligence Surveillance Act (FISA) Court has rebuked the Federal Bureau of Investigation (FBI) for failing to follow the rules the court has imposed on its warrantless search of US persons’ communications. Yet, in spite of the FBI’s latest failure to comply with safeguards placed on its surveillance powers, the FISA Court has signed off on rules allowing for the surveillance to continue.
Under §702 of the FISA Amendment Act of 2008, the NSA is permitted to gather without a warrant the overseas communications of non-US persons. However, as part of this collection the NSA “incidentally” collects the communications of US persons. Even though under any other circumstances accessing these communications would require a warrant, the FBI claims a “backdoor search” exception to the Fourth Amendment that allows it to access this information. In the past, the FBI has been accused of searching through the NSA-collected data like they were using Google.
When §702 was reauthorized by Congress in 2018, lawmakers mandated the FISA Court set yearly rules for how the FBI can access the data. According to a just declassified December 2019 FISA Court ruling, the FBI has engaged in “widespread violations” of the rules and carried out “broad suspicionless queries.” The secret court had limited the FBI to searching the intercepted US communications only when it was reasonably certain information related to foreign intelligence or criminal activity was likely to be gleaned. Yet, while the FBI conducted searches for information of 16,000 people, only seven of those searches involved people connected to an FBI investigation. In some instances, searches were conducted to vet people who had applied to become police officers.
One might think that this major failure of the FBI to comply with the most basic of restrictions would lead to a tightening of the FBI’s surveillance powers. Instead, in the same December 2019 ruling that called attention to the FBI’s widespread compliance issues, the FISA Court approved the FBI’s surveillance for another year.
Unfortunately, this is hardly surprising. As Defending Rights & Dissent has documented, the FBI has been repeatedly criticized by the FISA Court and various government watchdogs for running afoul of safeguards on its surveillance powers. The FBI has expansive powers with few checks. Yet, it has proven itself repeatedly incapable of or unwilling to comply with even the most minimal privacy safeguards.
The NSA should never have been allowed to store the US person’s communications that were intercepted without a warrant, whether these intercepts were “incidental” or not. And the FBI, should never have been granted access to this information without a warrant. Anyone remotely familiar with the FBI’s long and storied history of civil liberties abuses, knows that allowing them to warrantlessly access this information is opening the door for disaster.
It is well-past time for the FBI’s powers to be reined in and for the FBI to face meaningful oversight. Oversight that does not criticize the FBI’s abuses while simultaneously greenlighting their continuation.