The FBI has misused a powerful digital surveillance tool more than 278,000 times, including against crime victims, January 6 riot suspects, people arrested at protests in the wake of the police killing of George Floyd in 2020, and — in one case — 19,000 donors to a congressional candidate, according to a newly-unsealed court document.
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. It may also create additional headwinds for the FBI, which has been under attack for years by former president Donald Trump and his political supporters. House lawmakers aligned with Trump held a hearing this week trying to show the nation’s premier law enforcement agency is biased against conservatives.
The Foreign Intelligence Surveillance Court, which oversees Section 702, has pressured the FBI, writing in the April 2022 opinion that was unsealed Friday that if the agency doesn’t perform better, the court will crack down and order its own changes to FBI surveillance practices.
The Section 702 database is a vast trove of electronic communications and other information which can be searched by the National Security Agency and the FBI. The FBI is authorized to search the database only when agents have reason to believe such a search will produce information relevant to foreign intelligence purposes, or evidence of crimes.
Built in the aftermath of the Sept. 11, 2001 terror attacks, U.S. officials have long considered the database one of the prize jewels of the U.S. national security apparatus. Its primary purpose is targeting foreign intelligence or terrorism information. But the sweeping nature of the kinds of information the database includes has long worried civil rights advocates, who argue the government has proven it cannot be trusted to use the system carefully.
The court “is encouraged by the amendments to the FBI’s querying procedures,” Judge Rudolph Contreras of the FISA court wrote in the opinion, which detailed the nearly 300,000 abuses logged between 2020 and early 2021. “Nonetheless, compliance problems with the querying of Section 702 information have proven to be persistent and widespread. 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.”
Read the opinion by Judge Contreras of Section 702 abuses by the FBI
While House Judiciary Committee chairman Jim Jordan (R-Ohio) has argued the FBI has mistreated conservatives and applied a liberal bent to its investigations, the examples cited in Contreras’s opinion suggest that the FBI was multi-faceted in its failure to live up to the legal standards of the courts and the Justice Department.
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,” a time when demonstrations erupted across the country over Floyd’s death under the knee 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. The filing also doesn’t make clear how many of the individuals whose information was sought from the database were arrested while protesting police conduct, and how many might have been counter-protesters.
Around that same time, an FBI analyst conducted 656 queries of FISA information, apparently because the FBI was considering whether to use people as informants and wanted to check for any derogatory information, the court filing says. The FBI did not have any reason to believe agents would find such information, officials said.
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Officials also found a long pattern between 2016 and 2020 in which the FBI conducted FISA searches about “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." The FBI, however, argued "that querying FISA information using identifiers of the victims — simply because they were homicide victims — was reasonably likely to retrieve evidence of crime.”
After the Jan. 6 riot at the U.S. Capitol, an FBI employee ran batches of inquiries that amounted to 23,132 separate queries of presumed 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. There, too, 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. The court opinion also noted that “no raw Section 702 information was accessed as a result of these queries.”
In a different incident, an FBI analyst “conducted a batch query for over 19,000 donors to a congressional campaign” because the analyst said the campaign was “a target of foreign influence,” the opinion said. But Justice Department officials found in an audit that “only eight identifiers used in the query" — often a name, phone number or an email address — "had sufficient ties to foreign influence activities” that complied with the FISA standards.
Facial recognition software used to identify Lafayette Square protester accused of assault
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.
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. It may also create additional headwinds for the FBI, which has been under attack for years by former president Donald Trump and his political supporters. House lawmakers aligned with Trump held a hearing this week trying to show the nation’s premier law enforcement agency is biased against conservatives.
The Foreign Intelligence Surveillance Court, which oversees Section 702, has pressured the FBI, writing in the April 2022 opinion that was unsealed Friday that if the agency doesn’t perform better, the court will crack down and order its own changes to FBI surveillance practices.
The Section 702 database is a vast trove of electronic communications and other information which can be searched by the National Security Agency and the FBI. The FBI is authorized to search the database only when agents have reason to believe such a search will produce information relevant to foreign intelligence purposes, or evidence of crimes.
Built in the aftermath of the Sept. 11, 2001 terror attacks, U.S. officials have long considered the database one of the prize jewels of the U.S. national security apparatus. Its primary purpose is targeting foreign intelligence or terrorism information. But the sweeping nature of the kinds of information the database includes has long worried civil rights advocates, who argue the government has proven it cannot be trusted to use the system carefully.
The court “is encouraged by the amendments to the FBI’s querying procedures,” Judge Rudolph Contreras of the FISA court wrote in the opinion, which detailed the nearly 300,000 abuses logged between 2020 and early 2021. “Nonetheless, compliance problems with the querying of Section 702 information have proven to be persistent and widespread. 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.”
Read the opinion by Judge Contreras of Section 702 abuses by the FBI
While House Judiciary Committee chairman Jim Jordan (R-Ohio) has argued the FBI has mistreated conservatives and applied a liberal bent to its investigations, the examples cited in Contreras’s opinion suggest that the FBI was multi-faceted in its failure to live up to the legal standards of the courts and the Justice Department.
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,” a time when demonstrations erupted across the country over Floyd’s death under the knee 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. The filing also doesn’t make clear how many of the individuals whose information was sought from the database were arrested while protesting police conduct, and how many might have been counter-protesters.
Around that same time, an FBI analyst conducted 656 queries of FISA information, apparently because the FBI was considering whether to use people as informants and wanted to check for any derogatory information, the court filing says. The FBI did not have any reason to believe agents would find such information, officials said.
Press Enter to skip to end of carousel
End of carousel
Officials also found a long pattern between 2016 and 2020 in which the FBI conducted FISA searches about “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." The FBI, however, argued "that querying FISA information using identifiers of the victims — simply because they were homicide victims — was reasonably likely to retrieve evidence of crime.”
After the Jan. 6 riot at the U.S. Capitol, an FBI employee ran batches of inquiries that amounted to 23,132 separate queries of presumed 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. There, too, 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. The court opinion also noted that “no raw Section 702 information was accessed as a result of these queries.”
In a different incident, an FBI analyst “conducted a batch query for over 19,000 donors to a congressional campaign” because the analyst said the campaign was “a target of foreign influence,” the opinion said. But Justice Department officials found in an audit that “only eight identifiers used in the query" — often a name, phone number or an email address — "had sufficient ties to foreign influence activities” that complied with the FISA standards.
Facial recognition software used to identify Lafayette Square protester accused of assault
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.
