Report: FBI Misused Foreign Surveillance Powers To Investigate Domestic Crimes

As recently as 2019, the FBI used surveillance tools intended for tracking foreign terrorists and spies in unrelated domestic crime investigations involving Americans without even seeking secret warrants from the Foreign Intelligence Surveillance Act (FISA) Court.

The information comes from a recent certification report from the FISA Court itself, written in November but declassified and released by the Office of the Director of National Intelligence Monday.

The report documents 40 instances in which the FBI secretly accessed data collected not about foreigners but about American citizens for investigations of “healthcare fraud, transnational organized crime, violent gangs, domestic terrorism involving racially motivated violent extremists, as well as investigations connected to public corruption and bribery.”

Though it is the FBI’s job to investigate such crimes, in these instances they did so using data collected under the Section 702 authorities of FISA, which does not permit targeting Americans for these types of investigations. Section 702 specifically focuses on unwarranted searches of foreign targets because they don’t have the protections of the Fourth Amendment and therefore their communications can be collected and reviewed. Even with that clearance, the FISA Court exists to make certain that the FBI and National Security Agency do not abuse their access against Americans—which is exactly what happened here.

When Congress renewed Section 702′s authorities in 2018, they actually codified permission to use this part of the law for domestic surveillance for certain types of crimes, like human trafficking. Yet the FBI still misapplied it.

Nevertheless, despite these violations of procedure and of Americans’ privacy, the FISA Court went ahead and renewed federal certification for this Section 702 surveillance. The explanation as to why actually goes back to a completely different FBI violation—when the agency screwed up its search warrants to the FISA Court when surveilling Carter Page, former Trump campaign aide. As part of the investigation into whether Donald Trump or people in his orbit had been compromised by Russian agents, they got permission to wiretap Page’s communications. But the FBI cut corners on the warrant applications and omitted information that likely would have raised questions as to whether the surveillance was justified. And a subsequent audit from the Office of the Inspector General for the Department of Justice found that the FBI routinely made errors in its warrant requests to the FISA Court when asking to surveil Americans.

After those problems were publicly revealed in 2019, the FISA Court ordered the FBI to submit a formal plan to fix them. Director Chris Wray responded with a 40-point training plan to correct FBI surveillance procedures so that they’re compliant with privacy protections for Americans.

This latest FISA Court report notes that these newly discovered violations took place before Wray’s training program was implemented. So, as FISA Court judge James Boasberg explains in the report, they’re going to assume—until they discover otherwise—that Wray’s reforms fixed these problems.

I’m not kidding. Boasberg writes, “the Court finds that the proposed procedures, as reasonably expected to be implemented, comply with applicable statutory and Fourth Amendment requirements.” (Emphasis mine.)

That feels like a massive shrug, given the number of mistakes the FBI has been making in both submitting proper FISA warrants and in snooping through Americans’ data without warrants. But the recertification in this report comes with strings attached. Boasberg is ordering quarterly reports detailing each instance in which FBI personnel accessed Section 702–acquired information about an American that wasn’t for the purpose of foreign intelligence gathering, what the information is used for, precisely how it happened, and whether it was consistent with their 702 authorities.

The increased transparency about how this FISA Court surveillance works—due to both reforms that followed Edward Snowden’s disclosures as well as attention brought by the investigation of Trump’s campaign—has been a boon to the public in understanding that this system is far from perfect. As we can see, even with this more visible oversight, the FBI keeps making mistakes that violate Americans’ Fourth Amendment protections against warrantless searches. It’s something to remember whenever anybody attempts to argue that the FBI needs more authority or more laws to combat domestic terrorism. It is not properly respecting the limits on the power it already has.