by Eike Blohm, MD
A recent Department of Justice (“DOJ”) Inspector General report found that the Federal Bureau of Investigation (“FBI”) routinely sidesteps regulations of electronic surveillance and essentially deliberately misinterprets DOJ guidelines.
Edgar Hoover was the first director of the FBI and was notorious for amassing personal and private information of U.S. persons without their knowledge or consent and certainly not with court approval. This culture appears to be unchanged in 2022 as the FBI continues to engage in the practice.
Electronic surveillance is omnipresent in the U.S. The National Security Agency (“NSA”) stores vast amounts of raw communication data in so-called “haystacks” under the Foreign Intelligence Surveillance Act (“FISA”) of 1978 (50 U.S.C. § 180). Law enforcement agencies such as the FBI may query those haystacks under specific rules.
Under 50 U.S.C. § 1805(c) part of FISA, the government has to submit an individualized application for surveillance identifying the target, type of information sought, and procedures to be used. As regulated by § 1805(a)(2)(A), a Foreign Surveillance Court (“FISC”) then has to find probable cause that the target is a “foreign power” or agent thereof. Continued compliance was intended to be assured by § 1805(d)(3), which provided for ongoing judicial review of the surveillance process.
All such constraints went out the window with § 101(a)(2) of the FISA Amendment Act of 2008. As long as the target is “reasonably believed” to be outside of the U.S., the government no longer needs to submit an individual application for surveillance. Nor does the FISC need to find probable cause. Instead, the FISC simply verifies that the government certifies it believes probable cause exists. Surveillance orders can also be significantly broader, such as all communication to a foreign country – including communication to and from U.S. persons. Worst of all, the FISC may no longer monitor compliance with FISA rules. Instead, the Attorney General and Director of National Intelligence are entrusted with self-policing law enforcement and intelligence agencies.
With such lax rules and oversight, it is unsurprising that the DOJ’s Inspector General found the FBI routinely sidestepped regulations. Guidelines of the DOJ state that “haystacks” may be accessed if such query is “reasonably likely to return foreign intelligence information or evidence of a crime.” But the FBI made its own guidelines, which simply require that “to the extent reasonably feasible, authorized users [...] must design such queries to find and extract foreign intelligence information or evidence of a crime.”
Apparently, it wasn’t “reasonably feasible” when the FBI routinely queried “haystacks” to check the backgrounds of potential confidential human sources (“CHS”). Many of the prospective CHS were U.S. persons, which the FISA Amendment Act of 2008 specifically excluded from the released authorization requirements.
The Inspector General further found that the FISC was not informed of potential FISA violations by the FBI. It appears the FBI had a different interpretation of “materiality” when it certified it had probable cause to access FISA “haystacks.” It only considered facts material if they determined the outcome of a probable cause determination. This is contrary to the DOJ’s interpretation of materiality, which deems pertinent any facts that might influence determination of probable cause.
What is concerning is that the FBI has sidestepped regulations and misinterpreted DOJ guidelines not occasionally but consistently over the past 15 years. Clearly, more oversight and stricter regulations are needed to protect U.S. persons from living in an Orwellian dystopia.
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