Much to digest from the redacted FISA Court opinions released yesterday. But the bottom line should by now be familiar: the government has once again violated the rules designed to protect the privacy of Americans swept up in “foreign intelligence” surveillance. 1/17
A quick refresher: under Section 702 of FISA, the government can collect communications of foreigners overseas without a warrant, because foreigners have no Fourth Amendment rights. But such surveillance “incidentally” sweeps in massive amounts of Americans’ communications. 2/17
The law requires the government to "minimize" the sharing and retention of this “incidentally” collected data. Instead, the government retains it for years, and the FBI routinely combs through it looking for Americans’ communications to use in purely domestic cases. 3/17
Civil liberties advocates have long argued that the government should have to get a warrant to conduct these “backdoor searches.” Instead, Congress and the FISA Court have imposed some pretty minimal conditions on their use. 4/17
The opinions reveal that the FBI has violated even these basic limits. When it reauthorized the law in early 2018, Congress ordered the FBI to record each time it searches for an American’s communications. The FBI hasn’t done that. Its defense? That would be too hard. 5/17
Also, under procedures approved by the FISA Court, the FBI can only do backdoor searches that are reasonably likely to return foreign intelligence or evidence of a crime. Turns out, the FBI has run searches on *tens of thousands* of Americans without meeting that standard. 6/17
In one case, someone at the FBI ran a query of 70,000 phone/emails associated with individuals with access to FBI facilities. This was in March 2017. Any guesses what the gov’t was looking for? 7/17
The opinions also give some frightening insight into how often backdoor searches happen (something the FBI has refused to disclose or estimate). Apparently, the FBI ran 3.1 million searches on *one database alone.* 8/17
Some of those 3.1 million searches might have been for foreigners’ communications. But as the Court noted, the FBI is a domestic law enforcement agency. It seems pretty clear the FBI is conducting millions of warrantless searches each year for Americans’ communications. 9/17
Some bright spots in the decisions: the Court’s use of amici and actual consideration of their arguments; its unwillingness to let the FBI get away with its usual claim of “if you force us to adhere to privacy protections, it will slow us down and you’ll all be in danger.” 10/17
Another bright spot: a FISA Court judge finally recognized the contradiction between the FBI’s claim that it strictly limits access to Americans’ data, and the Bureau's strong encouragement to employees to perform backdoor searches early and often in any investigation. 11/17
Sadly, though, the Court failed to accept the growing consensus among other courts that a search of already-collected information can be a separate Fourth Amendment event. Had the Court adopted this approach, it would have meant a warrant requirement for backdoor searches. 12/17
Instead, the Court adopted amici’s suggestion that when FBI agents run backdoor searches, they should have to document the reason why the search was likely to return foreign intelligence or evidence of a crime before reviewing any responsive communications. 13/17
That’s pretty weak sauce. After all, the Court had found that FBI agents are fundamentally uncertain about what that standard even means. How will writing down their misconceptions help? 14/17
A year from now, we’ll learn that the FBI failed to comply with the new requirement, and/or that agents continued to run improper searches. And the FISA Court will order some other incremental change, like adding a layer of supervisory review. The cycle will repeat. 15/17
Section 702 has been in place for over a decade. FISA Court opinions issued in 2011, 2015, 2017, and now 2018 make clear that the government has NEVER been in full compliance with the rules meant to protect Americans’ privacy. 16/17
The experiment is over; the verdict is in. Whether or not “minimization” protects Americans in theory, in practice it never has, and clearly never will. The only way to safeguard Americans’ Fourth Amendment rights is to require a warrant to search for their communications. 17/17
