The Court charged with overseeing US surveillance authorities has rendered a bombshell ruling: the Federal Bureau of Investigation is using authorities aimed at surveilling foreigners abroad to investigate Americans impermissibly. Instead of using Section 702 of the Foreign Intelligence Surveillance Act (FISA) to prevent foreign terrorist attacks and collect foreign intelligence, it used information collected under this program to vet Americans who wanted to become police officers, to vet American college students participating in a “Collegiate Academy,” and to check out Americans who had visited an FBI office. In one stunning disclosure, the Foreign Intelligence Surveillance Court (FISA Court) found that the FBI used the identifiers of 16,000 Americans to comb through the data collected under this program, even though the FBI could legally justify only seven of those 16,000 queries based on the required foreign intelligence or crime-fighting purposes.
The revelation appeared in a December 2019 opinion of the super-secret FISA Court that intelligence officials did not release until today.
The intelligence authority – Section 702 of the Foreign Intelligence Surveillance Act, 50 USC 1881a – dates to 2008 and was justified as being necessary to fight terrorism. It enables the government to compel companies under U.S. jurisdiction to disclose communications of foreigners abroad who can be targeted without any showing of wrongdoing, of ties to a foreign terrorist organization, foreign government or other foreign power, and without any finding by the FISA Court regarding the specific targeted person.
Because the criteria for surveillance are so minimal, tens of thousands of foreigners abroad are targeted each year, and their stored and real time communications are collected in a vast database for future use. There were 204,968 targets of Section 702 surveillance in 2019 alone. It is this database that the FBI is querying to investigate Americans, whose communications may appear in the database because they communicated with a target or were targeted inadvertently.
The FISA Court also criticized the FBI for failing to abide by court-approved targeting procedures that required it to retain the search terms it used to query the data about Americans, and to retain the factual justification for making the queries. Such information is essential for oversight of the program by the FISA Court, by Congress, and by agency inspectors general.
CDT has long called for the government to narrow the scope of this program to protect the rights of foreigners abroad, as well as the rights of Americans. In July, the Court of Justice of the European Union struck down a key data sharing agreement with the U.S. in part because of the threat this authority represents to the privacy rights of citizens of EU countries.
The FISA Court’s opinion ultimately approved the Section 702 procedures and certifications that the government submitted to it. But its criticism of the FBI’s conduct demonstrates the vast authority the program grants to spy on Americans, and shows that reforms to Section 702 are long overdue.