A newly unsealed court document has revealed that the FBI misused the Section 702 database — a warrantless-surveillance tool — against a variety of Americans, including 19,000 donors to a congressional candidate, crime victims, people who protested during the summer of unrest in 2020, and January 6 suspects.
Section 702 of the Foreign Intelligence Security Act (FISA) gives the intelligence community broad power to surveil foreigners but can also be used to surveil Americans without a warrant if those Americans are in contact with foreign targets. The Biden administration has urged Congress to renew the expiring program for national-security reasons, but privacy advocates in both chambers insist that guardrails are necessary. Despite the fact that there was a significant drop in the FBI’s warrantless searches of U.S. communications in 2022, members of Congress aren’t dissuaded from seeking reforms.
The revelation Friday of over 278,000 improper searches is likely to complicate matters further for the Biden administration.
The unsealed ruling from April 2022 was authored by Judge Rudolph Contreras of the Foreign Intelligence Surveillance Court. The government was seeking reauthorization to continue acquiring information under Section 702 as well as approval for new procedures meant to address past failings.
Contreras allowed the program to operate for another year based on the changes the FBI had made between 2021 and 2022.
“Compliance problems with the FBI’s querying of Section 702 information have proven to be persistent and widespread,” he wrote. “If they are not substantially mitigated by these recent measures, it may become necessary to consider other responses, such as substantially limiting the number of FBI personnel with access to unminimized Section 702 information.”
The ruling lists a number of instances in which the FBI improperly queried Americans, who are supposed to be run through the Section 702 database only if there is reasonable belief the query will be likely to return foreign-intelligence information or evidence of a crime. The FBI seemed to “lack an understanding of how to apply the querying standard, as evidenced by queries [the DOJ’s National Security Division] found to have violated the standard, but that the FBI — sometimes at the management level — insisted were proper.”
“Between May 2016 and early 2020, the FBI . . . regularly queried unminimized FISA information using identifiers of individuals listed in local police homicide reports, including victims, next-of-kin, witnesses, and suspects,” read the ruling. In June 2020, the FBI ran 133 individuals arrested “in connection with civil unrest and protests between approximately May 30, and June 18, 2020.” In both cases the National Security Division (NSD) argued that the standard had not been met. The FBI representatives protested that the mere fact of being a homicide victim or being arrested gave them reasonable belief that running searches through the Section 702 database was justified.
In another incident, an FBI analyst ran 13 queries of individuals suspected of having participated in the attack on the Capitol on January 6, 2021. “The analyst said she ran the queries to determine whether these individuals had foreign ties, and ‘indicated she had run thousands of names within FBI systems in relation to the Capitol breach investigation’ and did not remember why she ran these 13 queries,” read the ruling. Once again the NSD concluded the standard for querying had not been met. In another instance, the FBI ran two queries of a person under investigation for assaulting a police officer on January 6 because the FBI viewed the situation in general as a threat to national security, a claim the NSD viewed with skepticism.
The FBI ran another batch of 360 queries at one point and “provided no information to support a reasonable basis” for the searches.
In a background briefing, a senior FBI official said that in these cases, the analysts misunderstood the standard and were required to undergo additional training, according to the New York Times.
At another point, the FBI conducted a batch query for 19,000 donors to a congressional campaign. “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 ruling stated.
The Department of Justice told the Times that the aforementioned candidate had lost the election to an incumbent lawmaker.
It is not the only reported incident of a politician being run through the system. Representative Darin LaHood (R., Ill.), who is on the House working group considering reforms to Section 702, said he believes he has been surveilled by the program himself.
These instances occurred before the FBI made certain changes to the querying system, including making the Section 702 database excluded by default when agents conduct a search and requiring high-level approval for Section 702 queries.
A late April report from the Office of the Director of National Intelligence confirmed that queries of the communications of Americans in general — proper or improper — had dropped as a result: from 2,964,643 in calendar year 2021 to 119,383 in 2022.
Nevertheless, the changes and the corresponding drop were not impressive to members of Congress working on Section 702 reforms.
“It is incumbent upon Congress, not the Executive Branch, to codify reforms to FISA Section 702,” said LaHood and House Intelligence Committee chairman Mike Turner (R., Ohio) in a statement.
“Today’s report highlights the urgent need for reforms to government surveillance programs in order to protect the rights of law-abiding Americans,” said Senator Ron Wyden (D., Ore.) in response.
The new revelations also come shortly after the release of the Durham report, which found that the FBI did not give due consideration to the possibility that the Steele Dossier, used to obtain a FISA warrant to surveil Trump campaign aide Carter Page, was Russian disinformation.
The special counsel asserted more generally that the Department of Justice and the FBI did not have “any actual evidence of collusion” between Russian officials and Donald Trump’s 2016 presidential campaign, and began their Crossfire Hurricane probe of Trump’s campaign based on “raw, unanalyzed, and uncorroborated intelligence.”
Special Counsel John Durham also urged reforms.