The FBI repeatedly abused its search powers to query the names of over ten thousand Americans in a database of raw intelligence data, used to confirm suspicions of foreign ties, according to an opinion from the secretive Foreign Intelligence Surveillance Court released on Friday.
Those unlawfully targeted for searches included over a dozen protesters thought to be involved in the January 6 Capitol riot, 133 protesters arrested in connection to the George Floyd riots, 19,000 donors to a congressional candidate, more than 400 defense contractors and holders of security clearances, and numerous persons-of-interest appearing in police homicide reports – including victims, next-of-kin, and witnesses.
The court found the FBI had no factual basis to search the names in this particular database, a mammoth trove of information gathered under the controversial Section 702 provision of the Foreign Intelligence Surveillance Act, which expires this year. Section 702 gathers up emails, phone calls, text messages, and more. It is intended to target only foreign nationals located abroad thought to be acting as agents of a foreign power or terrorist organization. However, it has increasingly been misused as a backdoor to accessing Americans’ communications without a warrant.
In theory, agents may only search the foreign intelligence database if they have a “specific factual basis” to believe their search will return evidence of a crime or foreign intelligence connection. However, lawyers at the Justice Department’s National Security Division concluded nearly all of the domestic queries cited in Friday’s filing were improper, and civil liberties groups have skewered Section 702 for allowing what amounts to warrantless wiretapping of American citizens.
Senior national security officials told the Wall Street Journal that the searches mentioned in Friday’s opinion took place before the FBI implemented a series of “reforms” meant to prevent such abuses, including a requirement that agents submit written justifications for searches and actively opt in to searching the foreign intelligence database.
The Biden administration’s efforts to renew Section 702 have been met with strong opposition from privacy advocates on the Left and on the Right, due in large part to inappropriate use of the powers as in the searches disclosed in Friday’s filing. The court's opinion found the violations were “significant” and attributed them to a widespread misunderstanding of existing search rules.
Meanwhile, the Biden administration has refused even to declassify details of another “sensitive technique” of surveillance conducted under the aegis of Section 702 that required the court to sign off on its legality. Lawyers for the NSA have defended Section 702, arguing 59% of the intelligence included in the president’s daily brief has its roots in information collected via that program. Privacy advocates argue that that is even more reason for intelligence agencies to obtain warrants.