As first reported by Wired today, FBI agents have been breaking their own rules and unlawfully fishing through untold millions of communications that were warrantlessly swept up under Section 702 of the Foreign Intelligence Surveillance Act (FISA), an extremely controversial surveillance authority that has turned into a domestic spying tool.
These newly discovered violations include the unlawful searching of FISA information “using only the name of a U.S. Congressman,” using “the names of a local political party,” and based only on a tip that two individuals “of Middle Eastern descent” loaded boxes and containers into their car in a parking lot. These surveillance abuses were buried in a recently declassified document that the government released on December 21st, 2022.
These revelations follow a pattern of continuous and widespread misuses of Section 702 that are also described in heavily redacted FISA Court opinions. Those opinions reveal unlawful misuse of Section 702 information to spy on victims of crimes, community leaders, and family members.
“It’s hard to put into words how dangerous it is to have FBI agents breaking their own rules and unlawfully fishing through untold millions of emails and other communications that were warrantlessly swept up under Section 702, but these bone-chilling abuses offer glimpses, from racial profiling to spying on a political party to spying on a member of Congress,” said Demand Progress Senior Policy Counsel Sean Vitka. “There is something deeply wrong with FISA and the government’s out-of-control surveillance state. It is absolutely imperative that Congress face it head-on this year, before it’s too late.”
The Biden administration has already called for reauthorization Section 702. The statute puts a hole in the Fourth Amendment, which agencies including CIA, FBI, and NSA are exploiting to effect warrantless surveillance of Americans’ communications through “backdoor searches.” A “backdoor search,” which the government calls a “U.S. Person Query,” involves the government knowingly searching incomprehensibly vast Section 702 databases for Americans’ private communications without a warrant, even though the law was enacted specifically for the purpose of targeting non-U.S. Persons located outside the United States.
The government is collecting at least hundreds of millions of communications under Section 702 annually, all without a warrant. We also know that the FBI conducted up to 3.4 million backdoor searches from December 2020 — November 2021. The Biden administration knows of these abuses, but, with the support of former NSA lawyers, is misleading the public by claiming that Section 702 has never been “deliberately misuse[d].” Not only are they misleading the public, the government is already in Congress pressuring Representatives and Senators to reauthorize the law without any reforms.
“Like in 2020, when privacy champions in both parties stood up against an overly broad Patriot Act reauthorization, we expect Congress will resist intelligence agencies’ and the intelligence committees’ demands for reauthorization of Section 702 without an overhaul of Americans’ privacy protections,” continued Vitka. “With several key members of Congress already calling for a full repeal of Section 702, we expect there will be growing intensity to this debate in Congress over whether to reauthorize the authority at all and, if so, what must be done to stop the out-of-control domestic surveillance apparatus that surrounds every American. This fight is bigger than Section 702 — to say the least.”
For additional information, please see these resources, endorsed by a uniquely cross-partisan coalition of organizations:
– Timeline of selected legal and constitutional violations in programs operated under Section 702
– Problems, solutions, and background on Section 702