The Foreign Intelligence Surveillance Act (FISA) establishes specific procedures for surveillance and the collection of communications between "foreign powers" and "agents of foreign powers" suspected of espionage or terrorism.
While permitted to conduct targeted surveillance of foreign persons located outside of the US, FISA Section 702 obligates the federal agencies to comply with the Fourth Amendment, which prohibits unreasonable searches of US citizens. To start spying, federal agents must first obtain a warrant from the Foreign Intelligence Surveillance Court (FISC).
The NSA, for its part, "may not task a selector" without first determining that the target is expected to "possess, receive, or/and likely communicate foreign intelligence information" relevant to the subject matter of an authorised Section 702 certification.
However, some US federal agents ignore these formalities by resorting to so-called "backdoor" searches. And, according to the FISA court, the "FBI’s failure to properly apply its querying standard when searching Section 702-acquired information" is even "more pervasive than was previously believed".
For instance, between April 2019 and July 2019, an FBI technical information specialist who was conducting "limited background investigations" conducted a whopping 124 queries of Section 702-acquired information on:
· individuals who had requested to participate in the FBI's "Citizens Academy" – a programme for business, religious, civic, and community leaders;
· those who needed to enter the field office in order to perform a particular service, such as repair;
· individuals who turned to the field office seeking to provide a tip or to report that they were victims of a crime.
None of the aforementioned FBI queries "was related to national security", according to the court.
Furthermore, the review reveals that the FBI is using warrantless searches to investigate domestic crimes, including investigations of "health-care fraud, transnational organised crime, violent gangs, domestic terrorism involving racially motivated violent extremists, as well as investigations relating to public corruption and bribery".
According to The Daily Beast, using "backdoor" searches for "routine criminal investigations," which typically require warrants, "jeopardises an accused person’s ability to have a fair trial since warrantlessly acquired information is supposed to be inadmissible."
Similarly, Section 702 permits the interception of communications from designated foreign terrorists, not domestic ones, the media outlet remarks.
At the same time, the FBI's warrantless searches for cases concerning "public corruption and bribery", apparently means that the bureau continued to "improperly use FISA-acquired information to spy on government officials", suggests American lawyer and writer Techno Fog in his blog "The Reactionary".
The release of the FISA compliance review comes amid an ongoing investigation by Special Counsel John Durham into the origins of spying on the Trump campaign.
After two years of Durham's probe, the only person held accountable so far has been FBI attorney Kevin Clinesmith. The FBI lawyer pledged guilty for altering an email that was used in support of an FBI application to FISC to continue surveillance of a former Trump campaign aide, Carter Page.
The document was changed to show that Page never was "a source" for the CIA, even though the original CIA message indicated otherwise. Clinesmith's wrongdoing is just one in a series of FBI flaws in obtaining FISA for spying on Trump aides which were revealed by Department of Justice Inspector General Michael Horowitz in 2019. Nevertheless, Clinesmith got just 12 months probation, 400 hours of community service, and a $100 fee for this.
"The FISA heightened duty of candour doesn’t come with heightened punishments for violating that duty," writes Techno Fog, referring to the fact that the author of the latest FISA compliance review, James Boasberg, was the one who declined to sentence Clinesmith to prison.