FISA Court Finds The FBI Is Still Violating The Fourth Amendment With Its Abuse Of NSA Collections

from the no-surprises-here dept

The NSA isn't the only agency to abuse its surveillance powers. The FBI's ability to access unminimized data harvested by the NSA has resulted in abuse after abuse, as the FBI loves to use the massive data haul to perform "backdoor searches" of its domestic targets.

This concern has been raised repeatedly, most notably by Sen. Ron Wyden, who has been calling out surveillance abuses for years -- specifically calling out these backdoor searches and hinting (strongly) that they are much more prevalent than most people believed. Nothing much has been done about it, other than multiple federal agencies suggesting they too should be put on the ever-growing list of entities with access to the NSA's multiple collections.

A FISA Court opinion released by the Office of the Director of National Intelligence (ODNI) details even more abuse of the NSA's Section 702 collections by the FBI. When you give an agency the power to dig into massive amounts of data with minimal oversight, abuses will happen. But this goes further than "inadvertent" collections or erroneous access of unminimized data. This ruling [PDF] -- first reported on by the Wall Street Journal -- shows the FBI treats sensitive collections as its personal playground.

The October 2018 court ruling identifies improper searches of raw intelligence databases by the bureau in 2017 and 2018 that were deemed problematic in part because of their breadth, which sometimes involved queries related to thousands or tens of thousands of pieces of data, such as emails or telephone numbers. In one case, the ruling suggested, the FBI was using the intelligence information to vet its personnel and cooperating sources. Federal law requires that the database only be searched by the FBI as part of seeking evidence of a crime or for foreign-intelligence information. In other instances, the court ruled that the database had been improperly used by individuals. In one case, an FBI contractor ran a query of an intelligence database—searching information on himself, other FBI personnel and his relatives, the court revealed.

The partially-redacted, 138-page opinion makes it clear the FBI has frequently abused its access to the NSA's surveillance collections, which include emails, phone numbers, and a host of other digital detritus. Using collections authorized only to be used for national security purposes to perform security reviews of FBI personnel is obviously contrary to the intention of the program -- a purpose that is always reiterated loudly any time someone suggests surveillance should be curtailed. This opinion vindicates Wyden's incessant demands the FBI come clean about its backdoor searches. Wyden argued the FBI abused this power frequently. This opinion makes it clear the FBI abuses its "backdoor" access to domestic data constantly.

The weirdest thing is the Trump DOJ argued in court the program the FBI abused cannot be modified without harming the security of the nation. Yep, the administration that claims the "Deep State" is out to get it showed up in court to argue the Deep State should not have its power curtailed.

The court rejected this faulty premise. It also pointed out how severely any misuse of this power contains the potential to harm dozens, if not thousands, of people. Considering the breadth of the collection, running a single improper search returns hundreds, if not thousands, of records the FBI has no business retrieving. Using the database to vet employees or perform natsec vanity searches does not comply with the restrictions on the FBI's searches, which are only supposed to return data related to criminal activity (and then only certain crimes) and/or foreign intelligence information.

As usual, Sen. Ron Wyden was the first to go on record criticizing the FBI and its backdoor searches following the release of the FISA opinion.

Last year, when Congress reauthorized Section 702 of FISA, it accepted the FBI's outright refusal to account for all its warrantless backdoor searches of Americans. Today's release demonstrates how baseless the FBI's position was and highlights Congress' constitutional obligation to act independently and strengthen the checks and balances on government surveillance. The information released today also reveals serious abuses in the FB's backdoor searches, underscoring the need for the government to seek a warrant before searching through mountains of private data on Americans. Finally, I am concerned that the government has redacted information in these releases that the public deserves to know.

Wyden makes good points. And they're points he's made for years. Unfortunately, the FBI continues to do the stuff it shouldn't and the public has to read between the redactions in an (often vain) attempt to see what's being done to them in the name of "national security."

The abuses will continue until Congress or the FISA Court decide they've seen enough. While both entities have chastised agencies with access to NSA collections, neither have taken any action that will head off future misuse of surveillance databases in the future. We're a reactionary nation when it comes to surveillance abuse and that's just not going to prevent future abuses. But that's the nature of the national security beast. No one's allowed to know what's going on until after everything bad has happened.

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Filed Under: 4th amendment, backdoor searches, fbi, fisa court, fisc, nsa, odni, ron wyden, vanity searches