Congress is currently embroiled in a heated debate about the US government's ability to spy on its own citizens. And as this battle develops, the Federal Bureau of Investigation's fiercest adversaries on Capitol Hill are not simply reformers merely looking to curtail its power. The recent election has given a number of legislators greater power, and they are now attempting to significantly limit how the FBI investigates crimes.
At a critical juncture for the US intelligence community, new information on the FBI's violations of limitations on the use of foreign intelligence for domestic offences has come to light. The government is allowed to intercept the electronic communications of foreign targets who are not covered by the Fourth Amendment under Section 702 of the Foreign Intelligence Surveillance Act (FISA), the so-called crown jewel of US intelligence.
At the end of the year, that authorization will expire. However, mistakes in the FBI's secondary use of the data—the investigation of crimes committed on US soil—are expected to fuel an already ferocious discussion about whether law enforcement officials can be trusted with such an invasive instrument.
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," has been key to this conflict because it has uncovered new instances of the FBI breaking regulations limiting access to intelligence purportedly gathered to safeguard US national security. They claimed that there have been "many" instances of such "errors."
According to an audit assessment that was just recently made public, FBI agents often searched raw FISA data without authorization in the first half of 2020. Agents apparently looked for evidence of foreign influence connected to a US politician in one instance. In another, a local political party was the subject of an improper search. According to the report, these "mistakes" were caused by "misunderstandings" of the legislation in both instances.
The report claims that between December 2019 and May 2020, FBI agents searched FISA databases using "only the name of a US congressman," a search that was later determined to be "noncompliant" with legal requirements. However, some searches were "overly broad as constructed," according to investigators, even though they were "reasonably likely to return foreign intelligence information."
In a another incident, the FBI conducted searches using "local political party names" despite the fact that a relationship to foreign intelligence was "not reasonably likely." The DOJ offered an explanation for the mistakes, claiming that FBI agents "misunderstood" the search protocols and that they were "thereafter reminded of how to correctly apply the query guidelines." These are the errors that, in the end, will be used as ammo in the upcoming conflict to curtail the FBI's authority.
Although disturbing, the misuse, according to Elizabeth Goitein, senior director of the Brennan Center for Justice's national security programme at the New York University School of Law, was totally anticipated. "The door is opened to monitoring based on race, religion, politics, or other inadmissible characteristics," she claims when the government is permitted to access Americans' private communications without a warrant.
Raw Section 702 data contains unredacted information about Americans, as it is considered to be "unminimized" even though a significant portion of it is derived "downstream" from internet businesses like Google. High-level approval is needed to "unmask" it for spy agencies like the CIA and NSA. But the FBI routinely goes through unminimized data during investigations, as well as frequently before launching them, in a practice that privacy and civil liberties attorneys have dubbed a "backdoor search." In order to allay concerns, the US Congress changed FISA to need a court order in cases that are only criminal in nature. But it was revealed years later that the FBI had never requested authorization from the judge.
Following disclosures that a secret court had approved a wiretap on a former campaign assistant of then-presidential nominee Donald Trump in October 2016, as part of the FBI's investigation into Russian election interference, FISA eavesdropping came under increased Republican scrutiny. Despite the fact that there were multiple FBI mistakes, the wiretap application was hastily accepted even though an inspector general's report later established sufficient grounds for the investigation.
The FISA Amendments Act initially passed Section 702 in 2008, and it was more recently extended until December 31, 2023—notably, it is not used to authorise the wiretap itself. To further extend the authority, Congress must take a vote by the end of the year. With Republicans like Jim Jordan, a leading FBI critic, opposing a prompt reauthorization, and the Biden administration pressing for one, this deadline will undoubtedly spark a debate about government monitoring that will last the rest of the year.
As per research by Demand Progress, the recently revealed blunders are not the first in FBI history. According to declassified court papers, the bureau is suspected of carrying out thousands of illegal searches beginning in 2017 and continuing at least until 2019. For instance, the Foreign Intelligence Surveillance Court stated in a 2018 memorandum that the FBI's minimization methods, "as they have been executed," were inconsistent with neither the FISA standards nor the Fourth Amendment itself.
Additionally, it has disregarded rules that were approved in 2018 and called for a court order before using Section 702 data for domestic criminal investigations. Prior to November 2020, an oversight review revealed, for example, that the FBI had carried out 40 searches without the required authorization. These searches covered a variety of topics, including organised crime, health care fraud, public corruption, and bribery.
An earlier DOJ audit, which was declassified in August 2021, revealed that, in one case, an intelligence analyst had carried out "batch queries" of FISA-acquired data at the FBI's request, using the personal information of "multiple current and former United States government officials, journalists, and political commentators." Although the analyst made an effort to delete the US material, it claimed that occasionally they "accidentally failed" to do so.
