The Foreign Intelligence Surveillance Court chided the FBI for what appeared to be systemic abuse of its surveillance authority in 2017 and 2018, saying the bureau collected communications on more than 3 million American’s through the National Security Agency’s database, according to a new court ruling.
The October 2018 ruling — first released to the public last week — is highly redacted but still reveals the concerns of the the secret court. U.S. District Court Judge James E. Boasberg, who serves in the District of Columbia and the FISA court, wrote in his decision that the bureau abused its surveillance authority more than other agencies under review. His decision revealed that the bureau had mined data on more than 3.1 million ‘U.S. Persons’ in 2017. The FBI’s numbers soar in comparison to the 7,500 combined searches by the CIA and NSA during the same year.
FISA Court Has Exposed Surveillance Abuse Before
It is not the first time the FISA court has admonished what it deems illegal surveillance by the FBI and other government agencies. In 2017, this reporter published a FISA-court opinion that revealed that during the Obama Administration, the NSA had routinely intercepted and conducted reviews of American citizen communications in violation of the Constitution. Then the court noted that it was a massive abuse of the government’s foreign-intelligence-collection authority. Further, the then Obama administration failed to disclose its unlawful surveillance of Americans until late October 2016, just as the administration was ready to turn over the reigns to a new administration. At the time, the NSA had to meet a mandatory deadline to renew its surveillance authorities under the Foreign Intelligence Surveillance Act (FISA).
In this case, however, it is the FBI that is facing the FISA court scrutiny and the surveillance concerns happened under the Trump administration in 2017 and 2018, just as the White House was battling the FBI for what appears to be extensive malfeasance of the bureau as its former senior officials conducting improper surveillance on the administration.
FBI Querying Procedures
The court stated that the FBI querying procedures did not require bureau personnel to document the basis for searching Americans. For example, a reasonable query would be done to obtain information regarding ‘foreign intelligence information or evidence.”
“Without such documentation and in view of reported instances of non-compliance with that standard, the procedures seemed unreasonable under FISA’s definition of”minimization procedures” and possibly the Fourth Amendment,” the court stated.
According the 138 page FISA court ruling and the FBI’s own operating procedures, the bureau can only use the surveillance apparatus if there is a reasonable suspicion that a crime has occurred or if there is a national security risk.
This is based on Section 702 of the Foreign Intelligence Surveillance Act established after the September 11, 2001 terror attacks. According to Section 702, the NSA was given the ability to conduct monitoring of online communications involving foreign nationals in bulk but of course, American citizens were caught up in the sweep. Those sweeps allowed information to be stored in the NSA’s massive database. The data that was stored could then be mined by law enforcement and intelligence agencies.
“The FISC also concluded that the FBI’s querying and minimization procedures, as implemented, were inconsistent with Section 702 information and the Fourth Amendment, in light of certain identified compliance incidents involving queries of Section 702 information,” according to the website On The Record release from the Intelligence Community. The ruling noted that the “instances involved instances in which personnel either misapplied or misunderstood the query standard, such that the queries were not reasonably likely to return foreign intelligence information or evidence of a crime,” according to the IC.
This begs the question, how could trained FBI personnel not know that difference or the required laws to conduct searches on ‘U.S. Persons’? After all, this issue deals with a fundamental American rights granted in the Fourth Amendment of the U.S. Constitution.
The FBI’s mining capabilities appears to be what Boasberg was referring to in his decision but a large portion of the report is still classified. The ruling, however, offers the public a glimpse into the bureau’s use of the system and the abuse that was taking place.
It also should be a warning to Americans that surveillance is extensive and in reality nothing is private anymore, unless and if lawmakers demand the change.
In particular, the Court raised the following significant concems with the Government:
(I) The querying and minimization procedures included exemptions from otherwise applicable requirements for lawful training functions and lawful oversight of an agency’s personnel or systems. Those exemptions seemed unreasonably broad under the standards of the Fourth Amendment and FlSA’s definition of “minimization procedures.” See 50 U.S.C. §§ 1801(h), 1821 (4);e
(2) Under the querying procedures, the FBI would keep records of queries run against Section 702 data, but those records would not indicate whether the query term used was associated with a United States person. This record keeping practice appeared to be inconsistent with the statutory requirement that thee querying procedures “include a technical procedure whereby a record is kept of each United States person query term used for a query.” § 702(t)(l)(B); and
(3) The querying procedures did not require FBI personnel to document the basis for finding that each United States-person query term satisfied the relevant standard – i.e., that queries be reasonably designed to return foreign-intelligence information or evidence of, time. Without such documentation and in view of reported instances of non-compliance with that standard, the procedures seemed unreasonable under FISA’s definition of”minimization procedures” and possibly the Fourth Amendment. The Court noted it was favorably inclined toward amici’se suggestions that the Court require that, if FBI personnel want to examine thee contents of Section 702 information returned by a United States-person query, they would first be required to document why that query met the applicable standard.
Read the court ruling here.