But the Court Misses the Larger Problem: Section 702’s Mass Surveillance is Inherently Unconstitutional

EFF has long maintained that it is impossible to conduct mass surveillance and still protect the privacy and constitutional rights of innocent Americans, much less the human rights of innocent people around the world.

This week, we were once again proven right. We learned new and disturbing information about the FBI’s repeated and unjustified searches of Americans’ information contained in massive databases of communications collected using the government’s Section 702 mass surveillance program.

A series of newly unsealed rulings from the federal district and appellate courts tasked with overseeing foreign surveillance show that the FBI has been unable to comply with even modest oversight rules Congress placed on “backdoor searches” of Americans by the FBI. Instead, the Bureau routinely abuses its ability to search through this NSA-collected information for purposes unrelated to Section 702’s intended national security purposes.

The size of the problem is staggering. The Foreign Intelligence Surveillance Court (FISC) held that “the FBI has conducted tens of thousands of unjustified queries of Section 702 data.” The FISC found that the FBI created an “unduly lax” environment in which “maximal use” of these invasive searches was “a routine and encouraged practice.”

The court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for people’s communications

But as is too often the case, the secret surveillance courts let the government off easy. Although the FISC initially ruled the FBI’s backdoor search procedures violated the Fourth Amendment in practice, the ultimate impact of the ruling was quite limited. After the government appealed, the FISC allowed the FBI to continue to use backdoor searches to invade people’s privacy—even in investigations that may have nothing to do with national security or foreign intelligence—so long as it follows what the appeals court called a “modest ministerial procedure.” Basically, this means requiring FBI agents to document more clearly why they were searching the giant 702 databases for information about Americans.

Rather than simply requiring a bit more documentation, we believe the court should have imposed a real constitutional solution: it should require the FBI to get a warrant before searching for people’s communications.

Ultimately, these orders follow a predictable path. First, they demonstrate horrific and systemic constitutional abuses. Then, they respond with small administrative adjustments. They highlight how judges sitting on the secret surveillance courts seem to have forgotten their primary role of protecting innocent Americans from unconstitutional government actions. Instead, they become lost in a thicket of administrative procedures that are aimed at providing thin veil of privacy protection while allowing the real violations to continue.

Even when these judges are alerted to actual violations of the law, which have been occurring for more than a decade, they retreat from what should now be clear as day: Section 702 is itself unconstitutional. The law allows the government to sweep up people’s communications and records of communications and amass them in a database for later warrantless searching by the FBI. This can be done for reasons unrelated to national security, much less supported by probable cause.

No amount of “ministerial” adjustments can cure Section 702’s Fourth Amendment problems, which is why EFF has been fighting to halt this mass surveillance for more than a decade.

Opinion Shows FBI Engaged in Lawless, Unconstitutional Backdoor Searches of Americans

These rulings arose from a routine operation of Section 702—the FISC’s annual review of the government’s “certifications,” the high-level descriptions of its plans for conducting 702 surveillance. Unlike traditional FISA surveillance, the FISC does not review individualized, warrant-like applications under Section 702, and instead signs off on programmatic documents like “targeting” and “minimization” procedures. Unlike regular warrants, the individuals affected by the searches are never given notice, much less enabled to seek a remedy for misuse. Yet, even under this limited (and we believe insufficient) judicial review, the FISC has repeatedly found deficiencies in the intelligence community’s procedures, and this most recent certification was no different.

Specifically, among the problems the FISC noticed were problems with the FBI’s backdoor search procedures. The court noted that in 2018, Congress directed the FBI to record every time it searched a database of communications collected under Section 702 for a term associated with a U.S. person, but that the Bureau was simply keeping a record of every time it ran such a search on all people. In addition, it was not making any record of why it was running these searches, meaning it could search for Americans’ communications without a lawful national security purpose. The court ordered the government to submit information, and also took the opportunity to appoint amici to counter the otherwise one-sided arguments by the government, a procedure given to the court as part of the 2015 USA Freedom Act (and which EFF had strongly advocated for).

As the FBI provided more information to the secret court, it became apparent just how flagrant the FBI’s disregard for the statute was. The court found no justification for FBI’s refusal to record queries of Americans’ identifiers, and that the agency was simply disobeying the will of Congress.

Even more disturbing was the FBI’s misuse of backdoor searches, which is when the FBI looks through people’s communications collected under Section 702 without a warrant and often for domestic law enforcement purposes. Since the beginning of Section 702, the FBI has avoided quantifying its use of backdoor searches, but we have known that its queries dwarfed other agencies. In the October 2018 FISC opinion, we get a window into just how disparate the number of FBI’s searches is. In 2017, the NSA, CIA and National Counterterrorism Center (NCTC) “collectively used approximately 7500 terms associated with U.S. persons to query content information acquired under Section 702.” Meanwhile, the FBI ran 3.1 million queries against a single database alone. Even the FISC itself did not get a full accounting of the FBI’s queries that year, or what percentage involved Americans’ identifiers, but the court noted that “given the FBI's domestic focus it seems likely that a significant percentage of its queries involve U.S.-person query terms.”

The court went on to explain that the lax—and sometimes nonexistent—oversight of these backdoor searches generated significant misuse. Examples reported by the government included tens of thousands of “batch queries” in which the FBI searched identifiers en masse on the basis that one of them would return foreign intelligence information. The court described a hypothetical involving suspicion that an employee of a government contractor was selling information about classified technology, in which the FBI would search identifiers belonging to all 100 of the contractor’s employees.

As the court observed, these “compliance” issues demonstrated “fundamental misunderstandings” about the statutory and administrative limits on use of Section 702 information, which is supposed to be “reasonably likely to return foreign intelligence information.” Worse, because the FBI did not document its agents’ justifications for running these queries, “it appears entirely possible that further querying violations involving large numbers of U S.-person query terms have escaped the attention of overseers and have not been reported to the Court.”

With the benefit of input from its appointed amici, the FISC initially saw these violations for what they were: a massive violation of Americans’ Fourth Amendment rights. Unfortunately, the court let the FBI off with a relatively minor modification of its backdoor search query procedures, and made no provision for those impacted by these violations to ever be formally notified, so that they could seek their own remedies. Instead, going forward, FBI personnel must document when they use U.S. person identifiers to run backdoor searches—as required by Congress—and they must describe why these queries are likely to return foreign intelligence. That’s it.

Even as to this requirement – which was already what the law required -- there are several exceptions and loopholes. This means that at least in some cases, the FBI can still trawl through massive databases of warrantlessly collected communications using Americans’ names, phone numbers, social security numbers and other information and then use the contents of the communications for investigations that have nothing to do with national security.

Secret Court Rulings Are Important, But Miss the Larger Problems With Section 702 Mass Surveillance

It is disturbing that in response to widespread unconstitutional abuses by the FBI, the courts charged with protecting people’s privacy and overseeing the government’s surveillance programs required FBI officials to just do more paperwork. The fact that such a remedy was seen as appropriate underscores how abstract ordinary people’s privacy—and the Fourth Amendment’s protections—have become for both FISC judges and the appeals judges above them on the Foreign Intelligence Court of Review (FISCR).

But the fact that judges view protecting people’s privacy rights through the abstract lens of procedures is also the fault of Congress and the executive branch, who continue to push the fiction that mass surveillance programs operating Section 702 can be squared with the Fourth Amendment. They cannot be.

First, Section 702 allows widespread collection (seizure) of people’s Internet activities and communications without a warrant, and the subsequent use of that information (search) for general criminal purposes as well as national security purposes. Such untargeted surveillance and accompanying privacy invasions are anathema to our constitutional right to privacy and resembles a secret general warrant to search anyone, at any time.

The Founders did not fight a revolution to gain the right to government agency protocols

Second, rather than judges deciding in specific cases whether the government has probable cause to justify its surveillance of particular people or groups, the FISC’s role under Section 702 is relegated to approving general procedures that the government says are designed to protect people’s privacy overall. Instead of serving as a neutral magistrate that protects individual privacy, the court is several steps removed from the actual people caught up in the government’s mass surveillance. This allows judges to then decide people’s rights in the abstract and without ever having to notify the people involved, much less provide them with a remedy for violations. This likely leads the FISC to be more likely to view procedures and paperwork as sufficient to safeguard people’s Fourth Amendment rights. It’s also why individual civil cases like our Jewel v. NSA case are so necessary.

As the Supreme Court stated in Riley v. California, “the Founders did not fight a revolution to gain the right to government agency protocols.” Yet such abstract agency protocols are precisely what the FISC endorses and applies here with regard to your constitutionally protected communications.

Third, because Section 702 allows the government to amass vast stores of people’s communications and explicitly authorizes the FBI to search it, it encourages the very privacy abuses the FISC’s 2018 opinion details. These Fourth Amendment violations are significant and problematic. But because the FISC is so far removed from overseeing the FBI’s access to the data, it does not consider the most basic protections required by the Constitution: requiring agents to get a warrant.

We hope that these latest revelations are a wake-up call for Congress to act and repeal Section 702 or, at minimum, to require the FBI to get individual warrants, approved by a court, before beginning their backdoor searches. And while we believe current law allows our civil litigation, Congress can also remove government roadblocks by providing clear, unequivocal notice, as well as an individual remedy for those injured by any FBI or NSA or CIA violations of this right. We also hope that the FISC itself will object to merely being an administrative oversight body, and instead push for more stringent protections for people’s privacy, and pay more attention to the inherent constitutional problems of Section 702.

But no matter what, EFF will continue to push its legal challenges to the government’s mass surveillance program and will work to bring an end to unconstitutional mass surveillance.