The FBIs most controversial surveillance tool is under threat

congressional watching of the watchmen — The FBIs most controversial surveillance tool is under threat Review of FBIs access to foreign intelligence reveals misuse of surveillance tech.

Dell Cameron, Wired.com – Feb 12, 2023 1:27 pm UTC EnlargeChip Somodevilla/Getty Images reader comments 4 with 0 posters participating Share this story Share on Facebook Share on Twitter Share on Reddit

An existential fight over the US governments ability to spy on its own citizens is brewing in Congress. And as this fight unfolds, the Federal Bureau of Investigations biggest foes on Capitol Hill are no longer reformers merely interested in reining in its authority. Many lawmakers, elevated to new heights of power by the recent election, are working to dramatically curtail the methods by which the FBI investigates crime.

New details about the FBIs failures to comply with restrictions on the use of foreign intelligence for domestic crimes have emerged at a perilous time for the US intelligence community. Section 702 of the Foreign Intelligence Surveillance Act (FISA), the so-called crown jewel of US intelligence, grants the government the ability to intercept the electronic communications of overseas targets who are unprotected by the Fourth Amendment.

That authority is set to expire at the end of the year. But errors in the FBIs secondary use of the datathe investigation of crimes on US soilare likely to inflame an alreadyfierce debate over whether law enforcement agents can be trusted with such an invasive tool.

Central to this tension has been a routine audit by the Department of Justices (DOJ) national security division and the office of the director of national intelligence (ODNI)Americas top spywhich unearthed new examples of the FBI failing to comply with rules limiting access to intelligence ostensibly gathered to protect US national security. Such errors, they said, have occurred on a large number of occasions.

A report on the audit, only recently declassified, found that in the first half of 2020, FBI personnel unlawfully searched raw FISA data on numerous occasions. In one incident, agents reportedly sought evidence of foreign influence linked to a US lawmaker. In another, an inappropriate search pertained to a local political party. In both cases, these errors were attributed to a misunderstanding of the law, the report says. Advertisement

At some point between December 2019 and May 2020, FBI personnel conducted searches of FISA data using only the name of a US congressman, the report says, a query that investigators later found was noncompliant with legal procedures. While some searches were reasonably likely to return foreign intelligence information, investigators said, they were also overly broad as constructed.

In another incident, the FBI ran searches using the names of a local political party, even though a connection to foreign intelligence was not reasonably likely. The DOJ explained the errors away by saying FBI personnel misunderstood the search procedures, adding they were subsequently reminded of how to correctly apply the query rules. These are the mistakes that will ultimately serve as ammunition in the coming fight to diminish the FBIs power.

Elizabeth Goitein, senior director of the Brennan Center for Justices national security program at New York University School of Law, says that while troubling, the misuse was entirely predictable. When the government is allowed to access Americans private communications without a warrant, that opens the door to surveillance based on race, religion, politics, or other impermissible factors, she says.

Raw Section 702 data, much of which is derived downstream from internet companies like Google, is regarded as unminimized when it contains unredacted information about Americans. Spy agencies such as the CIA and NSA require high-level permission to unmask it. But in what privacy and civil liberties lawyers have termed a backdoor search, the FBIregularly searches through unminimized data during investigations, androutinely prior to launching them. To address concerns, the US Congress amended FISA to require a court order in matters that are purely criminal. Years later, however,it was reported that the FBI had never sought the courts permission.

FISA surveillance came under heightened Republican criticism following revelations that, in October 2016, a secret court had authorized a wiretap on a former campaign aide of then-presidential nominee Donald Trump during the FBIs investigation into election meddling by Russia. While an inspector generalsreport later found sufficient cause for the investigation, the wiretap application was haphazardly approved in the face of numerous FBI errors. Page: 1 2 Next → reader comments 4 with 0 posters participating Share this story Share on Facebook Share on Twitter Share on Reddit Advertisement Channel Ars Technica ← Previous story Related Stories Today on Ars