The FBI is promising to police its own use of a powerful warrantless surveillance tool that it can't seem to help abusing.
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The FBI has pulled off the impressive feat of getting both parties to agree on something. Republicans and Democrats alike expressed outrage at the Bureau after recent revelations of illegal spying on Americans, including Black Lives Matter protesters and people involved in the January 6th insurrection.
This scandal comes soon after the FBI vowed to stop abusing its powers under the Foreign Intelligence Surveillance Act (FISA). The Bureau has unveiled a new set of rules for its agents aimed at curbing wrongful surveillance of US citizens, but privacy advocates and a Democratic lawmaker say the new policies won’t put an end to these sorts of abuses.
This unconstitutional surveillance stems from Section 702 of the Foreign Intelligence Surveillance Act (FISA), which gives the FBI a broad mandate to spy on foreign targets without a warrant. The Bureau uses this “critical national security tool” to root out terrorist plots and espionage against the US.
When the Bureau intercepts the phone calls, texts, and emails of foreigners outside the United States, it also collects the data of the Americans whom these foreign targets contact. This can help the FBI uncover the American contacts of shady actors overseas.
However, it also gives the FBI the power to warrantlessly spy on US citizens who happen to contact foreign targets — whether they are involved in criminal activity or not.
“The trouble for civil liberties of Americans happens when people overseas call someone in the United States,” said Matthew Guariglia, senior policy analyst at the Electronic Frontier Foundation. “Because there’s so much international communication, it creates a massive trove of information on US people and non-US people that the FBI stores in the same databases.”
This is all in spite of FISA’s stated purpose as an international surveillance tool — not a domestic spying program. FISA surveillance does not require a warrant because of its focus on foreign actors, but the FBI has pointed this tool inward on US citizens, violating their Fourth Amendment rights.
“The government may only use [Section 702] to target non-U.S. persons located outside of the United States. [But] the FBI insists on using it for routine domestic criminal investigations, without a warrant or probable cause,” wrote Jerrold Nadler (D-NY), ranking member of the House Judiciary Committee, in a statement on the recently declassified evidence of FBI wrongdoing.
These revelations of FBI abuses of Section 702 — a declassified FISA court order acknowledging “persistent and widespread problems” with the program — are only the latest in a string of discoveries like it.
FBI agents routinely search without judicial review through databases of Americans’s communication records they gather under FISA. According to an external audit by the Office of the Director of National Intelligence (ODNI), the FBI conducted roughly 3.4 million such searches of Section 702 databases in 2021, called “backdoor searches” because they circumvent the need for a warrant.
Worse, these backdoor searches often have little to do with genuine concerns about crime or the intelligence operations of foreign countries, even though this flies in the face of recent congressional amendments to the act and the FISA court’s rules for looking through section 702 data.
FBI agents have used their access to 702 data to snoop on their relatives and co-workers, individuals who came to the FBI to carry out repairs, journalists, and a US Congressman, for example.
“The FBI has access to this massive pool of collected information, and they’re using it to conduct mass surveillance on US persons without a warrant,” said Guariglia.
While backdoor searches fell to 204,090 in 2022 after the Bureau placed stricter requirements on how agents can look through 702 databases, experts point out that the rules amount to little more than an “honor system approach” to policing FBI employees’ access to 702 databases, so they won’t prevent backdoor searches from continuing.
‘It’s pretty unclear how much judicial oversight there is.’
Under the new rules FBI analysts must have a “specific factual basis” to suspect that their search will yield evidence of a crime or foreign intelligence information. They must also design their search terms to retrieve as little irrelevant data as possible. When agents make especially large or sensitive searches, they now need approval from an attorney.
These guidelines, however, don’t have the teeth to hold agents accountable when wrongful searches happen, according to Guariglia.
“I don’t see anything that would create some kind of audit system, transparency, or accountability measures,” he said. “It’s pretty unclear how much judicial oversight there is.”
And since the FBI has a track record of ignoring the same requirements that the new rules lay out, Guariglia believes that “we’re totally justified in thinking that weak guidelines like this would be ignored internally.”
The FISA court lets the FBI make backdoor searches as long as they’re related to foreign intelligence or a crime, but the Bureau has engaged in “widespread violations” of these standards, according to a 2019 court opinion.
On top of this, the Bureau has skirted even modest attempts by Congress to impede backdoor searches.
Since legislative reforms to FISA in 2018, the law has required the FBI to obtain a warrant when searching 702 databases for Americans’s communications in only a small number of criminal cases.
Although FBI investigators performed searches to which the new requirement should have applied roughly one hundred times after the changes to FISA, the Bureau did not request a warrant in a case like this even once, according to an ODNI report.
Guarglia doesn’t think the new guidelines would force agents to ask for a warrant even when the law technically requires it.
“I don’t know what the mechanism is to stop somebody from just querying information whether they need a warrant or not,” he said.
Since the extent of the FBI’s abuses of FISA has become public, “You would think that the guidelines put on FBI agents afterward would be a bit stronger,” said Guariglia.
“[But] what these guidelines reveal is that not much has changed in terms of the general philosophy of using this program,” he added.
On the other hand, agencies that oversee the FBI’s use of FISA claim the new guidelines are making a real difference. They point to the drop in backdoor searches between 2021 and 2022 as proof that the guidelines are effective.
After conducting audits of the FBI’s new rules and agents’ compliance with them, the Department of Justice along with the ODNI say they are “encouraged by the many FBI personnel who are demonstrating an improved understanding of the query standard.”
Now that agents receive clear training and have more layers of compliance to go through when they search 702 databases, they have cleaned up their act, the groups say.
However, experts point out that the FBI has broken past promises to stop warrantless surveillance of Americans, and congressional reform is the only way to stop them.
“The FBI says that they have instituted new procedures to make this kind of abuse impossible. They have made that promise before,” wrote Nadler, adding that, if the FBI continues its backdoor searches, “Perhaps they should not have access to this information at all.”
He added that he’ll oppose the renewal of Section 702, which Congress will decide this winter, unless he sees “significant changes to the law to prevent this abuse.”
Unlike other courts, the FISA court has evaded legal counsel from outside experts. When these individuals try to provide the court with input, they “don’t have full access to the information they need and they are left out of many important cases,” according to the Brennan Center.
The secretiveness of intelligence agencies stands in the way of stopping warrantless backdoor searches, Guarglia argued.
“Part of the problem of putting a stop to mass surveillance and [protecting] civil liberties is that these problems are so opaque,” he said. “[The FBI] is so secretive that even pushing for reasonable reforms can often be quite hard.”
One of the main agencies responsible for keeping the FBI in line when it uses FISA’s powers — the FISA court — operates in a “secret and one-sided” fashion and “often only hears from the government,” the Brennan Center for Justice said in a letter pleading for reform Section 702.
Unlike other courts, the FISA court has evaded legal counsel from outside experts. When these individuals try to provide the court with input, they “don’t have full access to the information they need and they are left out of many important cases,” according to the Brennan Center.
While the FBI has touted Section 702 as an invaluable counterterrorism asset, “Don’t trust things on their face value,” countered Guariglia.
“To justify these mass surveillance programs, people in the intelligence community will often come out and say, ‘This program has single-handedly thwarted a dozen attacks,’ but never elaborate or go into specifics,” he said.
The upcoming renewal vote for Section 702 gives lawmakers the chance to make backdoor searches explicitly illegal under FISA.
“The problem [with Section 702] is that the rules technically condone this stuff,” said Guariglia. “Whether or not it’s constitutional is a good question. But they call it a backdoor search for a reason because it’s a loophole.”
“What any renewal of Section 702 this winter should look like is closing backdoor searches. There should be no instance in which the FBI can get communications records of Americans without a warrant,” he added.
