The FBI continued to abuse a powerful digital surveillance tool even after the Bureau promised reforms following its Trump-era abuses, according to a newly-unsealed Foreign Intelligence Surveillance Court document.
The FBI misused Section 702 of the Foreign Intelligence Surveillance Act (FISA) more than 278,000 times, the Washington Post reported, “including against crime victims, January 6 riot suspects, and people arrested at protests in the wake of the police killing of George Floyd in 2020.” In one particularly egregious case, they reportedly relied on Section 702 to spy on 19,000 donors to a congressional candidate.
Section 702 is a provision of the FISA Amendments Act of 2008 that “permits the government to conduct targeted surveillance of foreign persons located outside the United States, with the compelled assistance of electronic communication service providers, to acquire foreign intelligence information.”
The law, created in the aftermath of the Sept. 11, 2001 terror attacks, allows National Security Agency and FBI employees a to search a vast database of electronic communications and other information.
The FBI is authorized to search the Section 702 database “only when agents have reason to believe such a search will produce information relevant to foreign intelligence purposes, or evidence of crimes,” according to the Post.
The Foreign Intelligence Surveillance Court, which oversees Section 702, stated in the memorandum opinion that the FBI has shown “a pattern of conducting broad, suspicionless queries that violate the requirement that its queries of unminimized Section 702 information be reasonably likely to retrieve foreign intelligence information or evidence of a crime.”
In the April 2022 opinion, unsealed Friday, the FISA Court’s Judge Rudolph Contreras warned that if the FBI didn’t do better, the FISA court would crack down and order its own changes to the Bureau’s surveillance practices.
The FBI says it has already fixed the problems, which it blamed on a misunderstanding between its employees and Justice Department lawyers about how to properly use a vast database named for the legal statute that created it, Section 702.
But the failures to use the 702 database correctly when collecting information about U.S. citizens and others may make it harder for the agency to marshal support in Congress to renew the law, which is due to expire at the end of this year.
Before the 2022 midterm elections, Rep Jim Jordan (R-Ohio), Chairman of the Judiciary Committee, promised “major changes” to the Justice Department and FBI if Republicans won control of Congress, and said FISA should be allowed to expire.
“I think we should not even reauthorize FISA which is going to come in the next Congress,” Rep. Jordan said in a Fox News Channel interview on October 9, 2022. “At the very least, Congress needs to change the FISA process, Jordan added.
More recently, Rep. Matt Gaetz (R-Fla.) noted in an interview with Newsmax that “we are going to have to take a vote in the Congress to reauthorize the very authorities we saw weaponized in [the John Durham report] and I cannot imagine any Republican voting to reauthorize those authorities.”
In the opinion, Judge Contreras said the court “is encouraged by the amendments to the FBI’s querying procedures,” but noted that “compliance problems with the querying of Section 702 information have proven to be persistent and widespread.”
The judge added: “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 FISA Court’s report detailed the nearly 300,000 abuses logged between 2020 and early 2021.
For instance: After the Jan. 6 riot at the U.S. Capitol, an FBI employee ran a whopping 23,132 separate queries of Americans “to find evidence of possible foreign influence, although the analyst conducting the queries had no indications of foreign influence related to the query term used,” Contreras found. Justice Department officials “concluded there was no specific factual basis to think the searches would turn up foreign intelligence information or evidence of a crime” and the court opinion found that “no raw Section 702 information was accessed as a result of these queries.”
In June 2020, the FBI searched for digital data and communications of 133 people arrested “in connection with civil unrests and protests between approximately May 30, and June 18, 2020,” when protests and riots erupted across the country over George Floyd’s death at the hands of a Minneapolis police officer.
That search was done, officials said, to see if there was counter-terrorism information about those individuals. When questioned about the searches later, FBI officials said it was reasonable for agents to think the searches would return foreign intelligence. The court opinion describing that effort has significant redactions, making it unclear why the FBI developed its theory.
Incredibly, the Court also found a long pattern between 2016 and 2020 in which the FBI conducted FISA searches targeting “individuals listed in police homicide reports, including victims, next-of-kin, witnesses, and suspects,” according to the court opinion. The Justice Department found these searches violated the rules “because there was no reasonable basis to expect they would return foreign intelligence or evidence of crime.”
In its defense, the FBI argued “that querying FISA information using identifiers of the victims — simply because they were homicide victims — was reasonably likely to retrieve evidence of crime.”
Even more egregiously, an FBI analyst “conducted a batch query for over 19,000 donors to a congressional campaign” because the campaign was supposedly “a target of foreign influence,” the opinion said.
Justice Department officials found that “only eight identifiers used in the query”—such as a name, phone number or an email address—”had sufficient ties to foreign influence activities” that complied with the FISA standards.
Officials said lawmakers who were briefed months ago about the problems have been pushing authorities to make them public. The delay in doing so was due to discussions of redactions of a separate part of the opinion, which described a novel application of surveillance techniques, who like others interviewed spoke on the condition of anonymity to discuss sensitive national security matters.
Senior law enforcement officials said Friday that the problems in the report do not represent FBI’s current practices. The problems were discovered largely due to Justice Department audits, they said, and have been remedied.
“We’re not trying to hide from this stuff, but this type of non-compliance is unacceptable,” a senior FBI official said. “There was confusion historically about what the query standard was,” said another senior law enforcement official.
The FBI has rolled out a host of changes to how agents and analysts use the Section 702 database. While a previous version of the system automatically included it in a list of areas that agents could search for information, agents and analysts must now specifically seek and choose to search 702 information. FBI users of the database are also required to write, in their own words, why they think their search will return foreign intelligence information or evidence of a crime, and an attorney must approve any “batch” searches involving large numbers of people.
In recent months, authorities have touted that the number of 702 searches conducted that involve U.S. residents or companies has dropped dramatically — more than 90 percent last year. Officials said Friday that the dropoff was largely the result of the Justice Department audit having found significant compliance failures by the FBI.
The problems identified by the court and the Justice Department are separate from criticism lodged against the FBI in 2019 by the Justice Department’s inspector general, and again this week by special counsel John Durham, over the FBI’s use of a different kind of foreign intelligence surveillance court order, which specifically targeted a former Trump adviser in 2016 and 2017 based on faulty and incomplete FBI applications.
In 2021, a follow-up report by Justice Department inspector general Michael Horowitz found “widespread” failures by the FBI to follow one of the key rules of FISA surveillance, indicating that the problems went far beyond the FBI’s investigation of former Trump adviser Carter Page.
Additionally, the court opinion included information regarding what officials called a “highly sensitive” surveillance technique, and a court debate about the novel use of that technique. Details about the technique are redacted, making it difficult to determine the purpose and scope of the controversial surveillance.
In a statement to American Greatness, Jordan said: “Chris Wray told us we can sleep well at night because of the FBI’s so-called Fisa reforms. But it just keeps getting worse.”