The FBI has misused a powerful digital surveillance tool more than 278,000 times, including against crime victims, Jan. 6 riot suspects, people arrested at protests after 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.
FBI officials say they have already fixed the problems, which the agency 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 of the Foreign Intelligence Surveillance Act (FISA).
But the failures to use the 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 head winds 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 that the nation’s premier law enforcement agency is biased against conservatives.
The Foreign Intelligence Surveillance Court, which oversees Section 702, has pressured the FBI to address the problems, 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 practices.
The Section 702 database is a vast trove of electronic communications and other information that 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 that such a search will produce information relevant to foreign intelligence purposes, or evidence of crimes.
Built in the aftermath of the Sept. 11, 2001, terrorist attacks, the database is seen by U.S. officials as one of the prize jewels of the national security apparatus. Its primary purpose is targeting foreign intelligence or terrorism information. But the sweeping nature of the information in the database has long worried civil rights advocates, who argue that the government has proved 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 Foreign Intelligence Surveillance 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.”
While House Judiciary Committee Chairman Jim Jordan (R-Ohio) has argued that the FBI has mistreated conservatives and applied a liberal bent to its investigations, the examples cited in Contreras’s opinion suggest that the bureau was multifaceted in its failure to live up to the legal standards of the courts and the Justice Department. In a written statement, Jordan said that FBI Director Christopher A. Wray “told us we can sleep well at night because of the FBI’s so-called FISA reforms. But it just keeps getting worse.”
In June 2020, the FBI searched for digital data and communications of 133 people arrested “in connection with civil unrest 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 counterterrorism 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 parts of the court papers describing that effort have 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, how many might have been counterprotesters or what, if anything, was done with the information gathered.
Around that same time, an FBI analyst conducted 656 queries of FISA information, apparently because the bureau 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 that agents would find such information, officials said.
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 that 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, 2021, 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 that 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.” Raw Section 702 information generally means electronic communications, such as emails or other digital messages, that have not been processed or filtered first to see if they meet the criteria of foreign intelligence information or evidence of a crime.
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” to comply with FISA standards. It’s not clear what, if anything, was done with the information collected.
Officials said the candidate in question did not ultimately win a seat in Congress, and the incident was distinct from an instance in which Rep. Darin LaHood (R-Ill.) said FISA surveillance wrongly targeted him.
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 in a separate part of the opinion, which described a novel application of surveillance techniques, said the officials, who like others interviewed spoke on the condition of anonymity to discuss sensitive national security matters. The details of that part of the opinion are redacted in a way that makes it difficult to determine the technique, target and purpose of that surveillance.
Senior law enforcement officials said Friday that the problems in the report do not represent the FBI’s current practices. The problems were discovered largely because of Justice Department audits, they said, and have been remedied.
“We’re not trying to hide from this stuff, but this type of noncompliance is unacceptable,” a senior FBI official said.
“There was confusion historically about what the query standard was,” said another senior law enforcement official.
Sen. Ron Wyden (D-Ore.), a longtime critic of what he says is dangerous overreach by U.S. intelligence officials, decried what he called the “shocking abuses of FISA Section 702.” He said that the abuses have been going on for years and that officials are still withholding key details from the public.
“There is important, secret information about how the government has interpreted Section 702 that Congress and the American people need to see before the law is renewed,” Wyden said in a written statement.
The FBI has rolled out a host of changes to how agents and analysts use the Section 702 database. While a previous version of the system automatically included it in a list of areas that agents could search for information, agents and analysts must now specifically seek and choose to search Section 702 information. FBI users of the database are also required to write, in their own words, why they think their search will return foreign intelligence information or evidence of a crime, and an attorney must approve any “batch” searches involving large numbers of people.
In recent months, authorities have touted that the number of Section 702 searches that involve U.S. residents or companies has dropped dramatically — more than 90 percent from last year. Officials said Friday that the decline happened largely because the Justice Department audit found significant compliance failures by the FBI.
The problems identified by the court and the Justice Department are separate from criticism lodged against the FBI in 2019 by the Justice Department’s inspector general, and again this week by special counsel John Durham, over the bureau’s use of a different kind of Foreign Intelligence Surveillance Court order, which specifically targeted a former Trump adviser in 2016 and 2017 based on faulty and incomplete FBI applications.
In 2021, a follow-up report by Justice Department inspector general Michael Horowitz found “widespread” failures by the FBI to follow one of the key rules of FISA surveillance, indicating that the problems went far beyond the agency’s investigation of the former Trump adviser, Carter Page.
That earlier criticism has led some Republicans to suggest that the FBI cannot be trusted with these surveillance powers — criticism that may intensify with the new findings of misuse.
