The FBI's most controversial surveillance tool is under threat

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An existential struggle over the ability of the US government to spy on its own citizens is brewing in Congress. And as this fight unfolds, the Federal Bureau of Investigation's greatest enemies on Capitol Hill are no longer reformers simply interested in limiting its authority. Many lawmakers, elevated to new heights of power by recent elections, are working to dramatically reduce the methods by which the FBI investigates crimes.

New details about the FBI's failure to comply with restrictions on using 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 electronic communications of foreign targets who are not protected by the Fourth Amendment. /p>

This authorization is due to expire at the end of the year. But errors in the FBI's secondary use of data - the investigation of crimes on American soil - risk inflaming an already fierce debate over whether law enforcement officers can be trusted. to such an invasive tool.

At the center of this tension is a routine audit by the Department of Justice's National Security Division (DOJ) and the Office of the Director of National Intelligence (ODNI) - America's "top spy" - which unearthed new examples of FBI failure. Comply with rules limiting access to information purportedly collected to protect the national security of the United States. Such "mistakes", they said, have occurred on a "large number" of occasions.

A recently declassified audit report revealed that during the first half of 2020, FBI personnel illegally sought raw FISA data on numerous occasions. In one incident, officers reportedly searched for evidence of foreign influence linked to a US lawmaker. In another case, an inappropriate search involved a local political party. In both cases, these "mistakes" were attributed to a "misunderstanding" of the law, the report says.

Sometime between December 2019 and May 2020, FBI personnel searched FISA data using "only the name of a U.S. congressman," the report says, a query that investigators later found "non-compliant" 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 searched using the “names of a local political party,” even though a connection to foreign intelligence was “not reasonably likely.” The DOJ explained the errors by saying FBI staff "misunderstood" the search procedures, adding that they were "subsequently reminded how to properly apply the query rules." It is these errors that will eventually serve as ammunition in the coming fight to diminish the power of the FBI.

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

Raw Section 702 data, much of which comes "downstream" from internet companies like Google, is considered "unminimized" when it contains unredacted information about Americans. Spy agencies such as the CIA and NSA need high-level clearance to "unmask" him. But in what privacy and civil liberties lawyers have called a "trench search," the FBI