The government declassified a court order from October 2018 that details the FBI’s misuse of its access to mass surveillance data collected in partnership with large tech and communications companies.
The order detailed what many Americans suspect: Federal agencies misuse mass surveillance in contravention of controls Congress has placed on them. What was not known by most Americans is that, at least as far as the FBI is concerned, these abuses occur hundreds of times a day.
In 1978, Congress passed the Foreign Intelligence Surveillance Act, which created the eponymous FISA Court. This court was designed to allow for non-public legal authorization for federal agencies to intercept the communications of foreign agents and terrorists. Section 702, passed in 2008, expands the scope of interception methods, essentially authorizing the gathering of mass amounts of communications, such as phone metadata and complete emails. And while it was originally used to surveil foreign agents, such intercepts routinely collect the communications of U.S. citizens.
The court order issued by U.S. District Court Judge James E. Boasberg excoriated the FBI for performing “fishing expeditions through Americans’ personal emails and online messages.” The FBI has unfettered access to this database of intercepted communications, and agents are not reluctant to use this resource. Agents conduct approximately three million searches per year, yet refer only about 10,000 cases for prosecution annually.
While it’s not clear what purpose the bulk of the searches serve, it’s likely the FBI would justify these searches under its assessments loophole. The FBI is primarily only allowed to use this information after obtaining a FISA warrant, which itself requires probable cause linking a suspect to criminal activity. However, the FBI also is allowed to assess whether anyone — U.S. citizens included — poses a threat to national security and may access the database to perform the assessment without a warrant.
But even with such restrictions, agents are not shy about stretching the limits of legality. The court order enumerated the following frivolous uses and abuses in its voluminous 138 pages:
• A four-day period in March 2017 involved searches for communications to an FBI facility, suggesting agents were spying on other agents.
• On Dec. 1, 2017, agents conducted 6,800 searches using just Social Security numbers.
• An FBI contract linguist conducted searches on himself, other FBI employees, and relatives.
• The FBI regularly used the database to investigate potential witnesses who were neither suspects nor national security concerns.
In the case of Fazliddin Kurbanov, an Idaho man who was eventually convicted of providing material support to a terrorist group in Uzbekistan, the “FBI appeared to launder evidence obtained improperly through the NSA’s mass surveillance program by acquiring traditional FISA authority after the fact in order to reobtain the evidence through less controversial powers.” In other words, the FBI found evidence of a crime during an unauthorized search of the database, then asked the FISA court for access so it would appear that the evidence was obtained legally and thus be able to use it to prosecute Kurbanov.
This declassified court order shows that few, if any, limits exist as to how federal agencies use mass surveillance data collected on Americans. The FBI apparently has no effective limits on how it spies on us.
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