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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” 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.”

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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. 

Section 702—notably, not used to authorize the wiretap itself—was first enacted as part of the FISA Amendments Act in 2008, and was more recently reauthorized until December 31, 2023. Congress must vote by year’s end to extend the authority any further. This deadline will provoke a debate around government surveillance likely to continue throughout the year, with the Biden administration pushing for a swift reauthorization and Republicans such as Jim Jordan, a top FBI critic, standing in its way.

Jordan, who wields significant power now as chairman of the House Judiciary Committee, signaled on Fox News before the start of the new Congress that a reauthorization bill before his committee might be dead on arrival.

DOJ investigators unearthed another incident, which in the report they say violated US attorney general guidelines: an FBI analyst using Section 702 intelligence in a way that “lacked a proper authorized purpose.” The investigators said “improper queries” were prompted by a report about an “individual of Middle Eastern descent,” whom a witness claimed “sped” into a parking lot before honking his horn. “A second individual of Middle Eastern descent” then began loading boxes into a second vehicle, said the witness, who noted some of the boxes were labeled Drano, the brand name of a drain-cleaning product.

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The report does not opine on whether the tip was the result of racial profiling, and it is widely known that chemicals commonly found in drain cleaners, among other household products, can be used in the creation of homemade bombs. The report only states that the matter was closed prior to the audit, and that it is the FBI’s prerogative to destroy any unminimized data it unlawfully obtained.

The errors at the FBI aren’t likely to bolster the US intelligence community’s case that the benefits of Section 702 outweigh any risks to Americans’ civil liberties by a mile, and that allowing it to sunset would widely compromise investigations into terrorists, foreign spies, and cyberattacks on American infrastructure. “Nothing is untouched, essentially, by this authority; it is fundamental to our work,” Avril Haines, the US’s director of national security, said earlier this year.

Prominent political figures, including US Senators Ron Wyden and Rand Paul, have put forward bills in the past seeking to limit the FBI’s access to unminimized Section 702 data. A bill initially put forward by the lawmakers in 2017, known as the USA RIGHTS Act, sought to rein in the FBI’s “sweeping authority,” which they described as being “clouded in secrecy.” Hakeem Jeffries, the current House Democratic Leader, was a cosponsor of the bill.

“The intelligence community, and the FBI in particular, has unnecessarily plundered the most private, sensitive information of American citizens, treating the Fourth Amendment with contempt,” says former Republican House Judiciary chair Bob Goodlatte, now senior adviser to the Project for Privacy and Surveillance Accountability. “Congress must add impenetrable guardrails to Section 702, requiring probable cause warrants to obtain Americans’ private information.”

Other troubling incidents, previously disclosed by a redacted court ruling, are also mentioned, including FBI searches of Section 702 data during “background investigations” into repairmen who’d been given access to an FBI field office; individuals who’d requested to join the bureau’s “Citizens Academy”—a program for “business, religious, civic, and community leaders”—and “individuals who entered the field office seeking to provide a tip or to report that they were the victim of a crime.”

An FBI spokesperson said the issues described by the report pre-date reforms aimed at addressing compliance incidents. This includes a new requirement that queries associated with US public officials and American journalists receive prior approval, in some cases by the FBI director himself. “While initial indications from these reforms are promising, the FBI is committed to continuing to take whatever steps we must to get it right," the spokesperson says. “And we look forward to sharing more information about these reforms and their effects over the coming months, as Congress debates reauthorization of this critical authority.”

Inquiries at the offices of the House and Senate Judiciary Committees went unanswered.

Sean Vitka, senior policy counsel for Demand Progress, a nonprofit focused on national security reform, says it is difficult to exaggerate the danger posed by federal agents rummaging through “untold millions of emails and other communications” without a warrant, while ignoring basic safeguards. “There is something deeply wrong with FISA and the government’s out-of-control surveillance state, and it is absolutely imperative that Congress face it head-on this year, before it’s too late,” he says.

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The recently disclosed errors are not the first in FBI’s history, according to research by Demand Progress. Starting in 2017 and continuing until at least 2019, the bureau is known to have conducted thousands of legally impermissible searches, according to declassified court records. The Foreign Intelligence Surveillance Court noted in a 2018 memorandum, for instance, that the FBI’s minimization procedures, “as they have been implemented,” were consistent with neither the FISA requirements nor the Fourth Amendment itself.

It has also not complied with regulations, passed in 2018, that required a court order before using Section 702 data to further domestic criminal investigations. An oversight review conducted prior to November 2020 found, for instance, that the FBI had conducted 40 queries without proper authorization related to a range of activities, from organized crime and health care fraud to public corruption and bribery.

A previous DOJ audit—declassified in August 2021—disclosed that, in one instance, an intelligence analyst had conducted “batch queries” of FISA-acquired information at the FBI’s request, using the personal information of “multiple current and former United States government officials, journalists, and political commentators.” While the analyst attempted to remove the US information, in some cases, it said, they “inadvertently failed” to do so. 

Update 12:45 pm ET, February 13, 2023: Added a statement from the FBI regarding its updated rules around compliance issues.

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