ODNI just released its annual statistical transparency report. Buried in the numbers is a major instance of FISA non-compliance that hasn’t previously been reported, and that directly implicates the constitutional rights of Americans. 1/16
Some background: Under FISA Section 702, the NSA collects hundreds of millions of phone & Internet communications each year. No warrant is required because the surveillance targets are foreigners overseas—but huge amounts of Americans’ communications inevitably get swept up. 2/16
When Congress passed Section 702, it sought to protect Americans’ constitutional rights by requiring the government to “minimize” the retention/use of this “incidentally” collected information. But that’s not what happened. 3/16
Instead, as we learned through Snowden’s disclosures in 2013, the FBI routinely combs through data obtained under Section 702 looking for Americans’ communications, a practice known as “back door searches.” 4/16
When Section 702 came up for reauthorization in late 2017, privacy advocates pushed to end back door searches by requiring the government to get a warrant before searching for Americans’ calls and emails. Congress declined to go that far… 5/16
…but it did impose a warrant requirement in a small fraction of cases. When FBI agents conduct backdoor searches during a “predicated criminal investigation” not involving national security, they must obtain a warrant before reviewing the contents of any communications. 6/16
Today’s statistical transparency report reveals, through the dry recitation of numbers, that the FBI has violated this statutory warrant requirement in literally every case in which it has applied. 7/16 intel.gov/assets/documen…
There were six instances in 2018 in which the FBI reviewed the contents of Americans’ communications after conducting a backdoor search in a criminal, non-national security case. The number of times it obtained a warrant before reviewing those communications? Zero. 8/16
The report also indicates that the FBI ran a backdoor search in a criminal, non-national security case and reviewed the contents of communications once in 2019. Again, the report states that zero warrants were obtained. 9/16
The 2018 incidents, by the way, were not reported in the 2018 statistical report, because they were discovered (per the 2019 report) in a compliance review that took place in 2019. At that point, they were apparently reported to the FISA Court as compliance incidents… 10/16
But they were not reported to the American public. It has been several months since the compliance review, and a chart on page 17 of the annual statistical report is how we are learning that the FBI violated the law requiring it to obtain warrants. 11/16
This is just the latest in a remarkable series of non-compliance revelations. Just in the last six months, we’ve learned that the FBI violated a statutory requirement to count the number of backdoor searches it conducts… 12/16 justsecurity.org/66595/the-fisa…
…that the FBI conducted tens of thousands of backdoor searches without meeting the extremely low standard set forth in mandatory, court-approved querying procedures (i.e., in cases where the warrant requirement doesn’t apply)… 13/16 justsecurity.org/66605/the-fisa…
…and, of course, that applications for surveillance under Title I of FISA are riddled with errors—not just in the Carter Page investigation, but in every one of the 25 other cases the Justice Department’s Inspector General reviewed. 14/16 justsecurity.org/69879/top-expe…
Congress cannot continue to hand the government sweeping powers to collect Americans’ most personal data, trusting that the FBI will adhere to limitations on how that data is accessed, shared, and kept. That trust has been betrayed too many times. 15/16
It is time to place meaningful limits on the collection of data in the first instance. That should be a guiding principle from now on when Congress reauthorizes expiring FISA authorities… as the Senate is scheduled to do this May. 16/16 justsecurity.org/68821/congress…
