FBI Broke Own Rules to Probe BLM Protests, Jan. 6 Riot & Congressional Campaign
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Section 702 was amended to the 1978 Foreign Intelligence Surveillance Act in 2008, allowing intelligence agencies to sweep up massive amounts of communications as long as it is targeted at a foreign national. Nevertheless, it also gathers information on US citizens.
The FBI broke its own rules while investigating racial justice protests and the January 6 riot, according to a heavily-redacted court order released on Friday.
Agents for the FBI violated its rules related to searching the massive repository of intelligence that is supposed to be focused on foreign nationals, but is increasingly used to build evidence against American citizens who should be protected under the Fourth Amendment. The document states the FBI violated the rules in searching the database thousands of times.
FBI agents also used the database to gather information about thousands of donors of an unnamed congressional campaign.
The violations were detailed in a secret court order issued by the Foreign Intelligence Surveillance Court (FISA), the virtual rubber stamp court that provides a modicum of oversight of the intelligence community’s spying efforts.
The Office of the Director of National Intelligence released the heavily-redacted document in the “interest of transparency.”
At issue is improper queries of the database, which was created under Section 702 of the Foreign Intelligence Surveillance Act and amended to the 1978 law in 2008.
Under that section, the intelligence community is allowed to gather communications from foreign nationals outside of the United States without a warrant. However, vast troves of communication from US citizens are also gathered in a process the intelligence community calls “incidental collection.”
But law enforcement agencies are allowed to query that data and any evidence they gather can be used to prosecute and imprison people, even if their alleged crime is not related to national security.
“The intelligence community calls this ‘incidental’ collection to downplay the fact that it routinely uses this broad and privacy-invasive foreign intelligence surveillance authority to collect Americans’ communications that should require a warrant,” the Electronic Frontier Foundation says about Section 702 on its website.
The FBI and other intelligence agencies argue Section 702 is essential to their fight against terrorism, espionage and cyberattacks.
The FBI is only supposed to use the database to gather foreign intelligence and can only search for information when they have a specific foreign intelligence purpose, or are searching for evidence of a crime. The document released on Friday shows the FBI used Section 702 at least 13 times to investigate people suspected of being at the January 6 riots. The agents ran those searches despite not being backed with any “analytical, investigative or evidentiary purpose,” the order said.
The agency also used Section 702 to investigate over 100 people who were arrested in relation to the racial justice protests and riots during the summer of 2020. In that case, the document states the FBI had reason to believe queries would result in foreign intelligence, but how it came to that assessment was redacted.
The document also states the FBI ran a batch query for 19,000 donors of an unnamed congressional campaign. The agent performing the search justified it using concerns that the campaign was a target of foreign influence but said only “eight identifiers used in the query had sufficient ties to foreign influence activities to comply with the querying standard.”
Officials told US media the candidate did not win a seat in Congress. They also clarified it was unrelated to Rep. Darin LaHood (R-IL), who accused the FBI of improperly searching for his name in the surveillance data trove.
“Today’s disclosures underscore the need for Congress to rein in the FBI’s egregious abuses of this law, including warrantless searches using the names of people who donated to a congressional candidate,” Patrick Toomey, who serves as the deputy director of the ACLU’s National Security Project, said.
“These unlawful searches undermine our core constitutional rights and threaten the bedrock of our democracy. It’s clear the FBI can’t be left to police itself.”
The order also shows the National Security Agency (NSA) received approval from the FISA court to use a “novel and sensitive” intelligence collection method, but its details were redacted. Another unsealed order shows the FISA court also granted the FBI permission to use a new surveillance method, but its details were also redacted.
23 March 2023, 00:07 GMT
Despite the FBI claiming that the summer 2021 reforms increased search rule compliance from 82% to 96%, this incident is likely to harm the intelligence community’s chances of getting Congress to reauthorize Section 702, which is set to expire this year.
“Section 702 has kept American citizens safe and our US service members abroad out of danger,” the chair of the House Intelligence Committee Rep. Mike Turner (R-OH) said in a statement. “However, changes must be made in order to prevent further FBI misuse and abuse of this vital national security tool.”
The FBI is not the only agency that has been criticized for its abuse of the foreign intelligence probe. In 2013, shortly after the Edward Snowden revelations proved the NSA was regularly spying on US citizens, it came to light that the NSA was having issues with its agents using the database to spy on their spouses and ex-spouses.
