[News] Court Ruling Shows How FBI Abused NSA Mass Surveillance

[Anti-Imperialist News]

https://theintercept.com/2019/10/10/fbi-nsa-mass-surveillance-abuse/


  Court Ruling Shows How FBI Abused NSA Mass Surveillance

Trevor Aaronson - October 10, 2019
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_The Foreign Intelligence_ Surveillance Court found that the FBI may 
have violated the rights of potentially millions of Americans — 
including its own agents and informants — by improperly searching 
through information obtained by the National Security Agency’s mass 
surveillance program.

U.S. District Court Judge James E. Boasberg, who serves in the District 
of Columbia and the FISA court, made his sweeping and condemnatory 
assessment in October 2018 in a 138-page ruling 
<https://www.documentcloud.org/documents/6464604-2018-FISC-Ruling-Shows-How-FBI-Abused-NSA-Mass.html>, 
which was declassified by the U.S. government this week.

    “These opinions reveal devastating problems with the FBI’s backdoor
    searches, which often resembled fishing expeditions through
    Americans’ personal emails and online messages.”

To longtime critics of the government’s mass surveillance program, the 
FBI’s abuses are confirmation that federal law enforcement agents are 
combing through the communications of Americans without warrants, in 
violation of Fourth Amendment protections against unreasonable searches 
and seizures.

“These opinions reveal devastating problems with the FBI’s backdoor 
searches, which often resembled fishing expeditions through Americans’ 
personal emails and online messages,” said Patrick Toomey, a staff 
attorney for the American Civil Liberties Union’s National Security 
Project. “But the court did not go nearly far enough to fix those 
abuses. The Constitution requires FBI agents to get a warrant before 
they go combing through our sensitive communications.”

The ruling concerns the FBI’s ability to access communications obtained 
through the NSA’s mass surveillance program, the existence of which was 
revealed in documents provided by whistleblower Edward Snowden. Critics 
of Snowden’s decision to leak classified NSA documents noted at the time 
that safeguards existed to prevent Americans’ communications from being 
searched improperly. The declassified FISA court ruling, however, shows 
that few safeguards existed at all.

The NSA’s mass surveillance program operates as a series of technologies 
and authorities that allow the government to intercept communications 
while in transit over the internet, as well as obtain communications 
directly from at least eight large technology companies without the need 
for warrants. These authorities, created in 2008 and renewed in 2018 
with some minor reforms 
<https://theintercept.com/2018/01/11/nsa-pelosi-democrats-spy-american-section-702/>, 
are the result of the expansion of the Foreign Intelligence Surveillance 
Act. The law created the secret FISA court to oversees its application.


      FBI Abuses

Under traditional FISA authorities established in 1978, the U.S. 
government may intercept the communications of agents of foreign 
governments and terrorist organizations if the intelligence community 
can demonstrate legal justification to the FISA court.

The expansion of FISA authorities, known as Section 702, allows for 
monitoring to be approved in bulk by the court through what is 
essentially a recipe for mass surveillance. This surveillance cannot 
legally target Americans but sweeps up all communications that fit the 
so-called selectors — akin to search terms, as well as other data based 
on patterns — and can produce enormous amounts of incidentally collected 
information, including communications from U.S. citizens. This data is 
stored and can later be searched by government agencies.

<https://www.documentcloud.org/documents/6464604-2018-FISC-Ruling-Shows-How-FBI-Abused-NSA-Mass.html#document/p1> 


The declassified FISA court ruling revealed that the FBI is the most 
prolific miner of data about “U.S. persons,” a legal term that means any 
U.S. citizen or foreign national legally in the country. Queries of this 
data are known as “backdoor searches.” In 2017, the FBI ran 
approximately 3.1 million searches related to U.S. persons, compared to 
7,500 combined searches by the CIA and NSA during the same year.

Many of the FBI’s searches were not legally justified because they did 
not involve a predicated criminal investigation or other proper 
justification for the search, as required by law, according to 
Boasberg’s FISA court ruling.

Among the abuses noted in the ruling:

  * During a four-day period in March 2017, the FBI searched mass
    surveillance data for communications related to an FBI facility,
    suggesting that agents were spying on other agents.
  * On one day alone, on December 1, 2017, the FBI conducted 6,800
    queries using Social Security numbers.
  * A contract linguist for the FBI conducted searches on himself, other
    FBI employees, and relatives.
  * The FBI regularly used mass surveillance data to investigate
    potential witnesses and informants who were neither suspected of
    crimes nor national security concerns.

In a statement to the FISA court, the FBI blamed these problems on 
“fundamental misunderstandings by some FBI personnel [about] what the 
standard ‘reasonably likely to return foreign intelligence information’ 
means.”

Following Boasberg’s ruling, the Justice Department appealed to a 
three-judge panel that reviews FISA court decisions. After the panel 
affirmed the ruling, the FBI agreed to change the way agents can search 
FISA data.


      “Assessments” Loophole

A type of FBI investigation known as an “assessment 
<https://theintercept.com/2017/01/31/based-on-a-vague-tip-the-feds-can-surveil-anyone/>” 
is one of the primary reasons why the FBI is able to abuse mass 
surveillance data.

While the law requires that FBI searches of such data be related to 
investigations in which agents have reasonable suspicion that crimes are 
occurring or in which national security is at risk, assessments provide 
an enormous loophole that potentially allows agents to search through 
the communications of any American without a warrant.

A power created after the 9/11 attacks, assessments allow the FBI to 
investigate anyone — for reasons as scurrilous as an anonymous tip — 
suspected of being a potential national security threat. Although the 
law doesn’t establish a time limit, FBI policy generally limits 
assessments to 72 hours. Because assessments are de facto national 
security inquiries, the FBI has viewed this as authority to search mass 
surveillance data for Americans’ communications.

The FBI refers about 10,000 investigations for prosecution 
<https://trac.syr.edu/tracreports/crim/415/> every year, but at the same 
time, agents have queried FISA data more than 3 million times in a year 
while investigating Americans. That suggests agents are using 
assessments to justify most of its backdoor searches of Americans’ 
communications.

The FBI is also using national security concerns to explain why it does 
not properly document its reasons for searching through Americans’ 
communications. The FBI told the FISA court that providing written 
justification for accessing the data, as required by law, would “hinder 
the FBI’s ability to perform its national security and public safety 
missions.”


      Evidence of Parallel Construction

One line in the FISA court’s recently declassified ruling adds to a 
growing body of evidence that the FBI is using a process known as 
“parallel construction” to secretly enter evidence from the NSA’s mass 
surveillance program into U.S. District Court for criminal prosecutions. 
The evidence-gathering technique might be analogized as a way for the 
FBI to search a home top to bottom before even showing up at the door 
with a warrant.

As The Intercept revealed in November 2017 
<https://theintercept.com/2017/11/30/nsa-surveillance-fisa-section-702/>, 
documents provided by Snowden showed that the NSA had taken credit for 
intercepting the communications of Fazliddin Kurbanov, an Idaho man who 
was convicted at trial of providing material support to the Islamic 
Movement of Uzbekistan and possessing bomb-making materials. But court 
records showed that the Justice Department claimed those communications 
had been acquired through traditional FISA authority, which would have 
required the FBI to present to the FISA court evidence that Kurbanov was 
a foreign agent before surveillance could be authorized.

In Kurbanov’s case, 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.

Kurbanov’s is one of a number of cases The Intercept found in which the 
intelligence community claimed that mass surveillance played a role in 
the case, while the Justice Department maintained in court records that 
only traditional FISA authority had been used.

In the recently declassified FISA court ruling, Boasberg noted an 
example that fits this pattern as an inappropriate use of FISA data. On 
November 11, 2017, the FBI conducted a search of mass surveillance data 
on “a potential recipient of a FISA order.” In other words, the FBI was 
able to mine mass surveillance data to find out what evidence agents 
would discover if they went ahead and requested the FISA order.

-- 
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