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<div class="header reader-header reader-show-element"> <font
size="-2"><a class="domain reader-domain"
href="https://theintercept.com/2019/10/10/fbi-nsa-mass-surveillance-abuse/">https://theintercept.com/2019/10/10/fbi-nsa-mass-surveillance-abuse/</a></font>
<h1 class="reader-title">Court Ruling Shows How FBI Abused NSA
Mass Surveillance</h1>
<div class="credits reader-credits">Trevor Aaronson - October
10, 2019</div>
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<p><u>The Foreign Intelligence</u> 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.</p>
<p>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
href="https://www.documentcloud.org/documents/6464604-2018-FISC-Ruling-Shows-How-FBI-Abused-NSA-Mass.html">a
138-page ruling</a>, which was declassified by the
U.S. government this week.</p>
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<p>“These opinions reveal devastating problems with the
FBI’s backdoor searches, which often resembled fishing
expeditions through Americans’ personal emails and
online messages.”</p>
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<p>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.</p>
<p>“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.”</p>
<p>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.</p>
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<p>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 <a
href="https://theintercept.com/2018/01/11/nsa-pelosi-democrats-spy-american-section-702/">renewed
in 2018 with some minor reforms</a>, are the result
of the expansion of the Foreign Intelligence
Surveillance Act. The law created the secret FISA
court to oversees its application.</p>
<h3>FBI Abuses</h3>
<p>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.</p>
<p>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.</p>
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<a
href="https://www.documentcloud.org/documents/6464604-2018-FISC-Ruling-Shows-How-FBI-Abused-NSA-Mass.html#document/p1"
target="_blank"><img
src="https://assets.documentcloud.org/documents/6464604/pages/2018-FISC-Ruling-Shows-How-FBI-Abused-NSA-Mass-p1-normal.gif"></a>
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<p>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.</p>
<p>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.</p>
<p>Among the abuses noted in the ruling:</p>
<ul>
<li>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.</li>
<li>On one day alone, on December 1, 2017, the FBI
conducted 6,800 queries using Social Security
numbers.</li>
<li>A contract linguist for the FBI conducted searches
on himself, other FBI employees, and relatives.</li>
<li>The FBI regularly used mass surveillance data to
investigate potential witnesses and informants who
were neither suspected of crimes nor national
security concerns.</li>
</ul>
<p>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.”</p>
<p>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.</p>
<h3>“Assessments” Loophole</h3>
<p>A type of FBI investigation known as an “<a
href="https://theintercept.com/2017/01/31/based-on-a-vague-tip-the-feds-can-surveil-anyone/">assessment</a>”
is one of the primary reasons why the FBI is able to
abuse mass surveillance data.</p>
<p>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.</p>
<p>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.</p>
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<p>The FBI refers about <a
href="https://trac.syr.edu/tracreports/crim/415/">10,000
investigations for prosecution</a> 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.</p>
<p>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.”</p>
<h3>Evidence of Parallel Construction</h3>
<p>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.</p>
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<p>As <a
href="https://theintercept.com/2017/11/30/nsa-surveillance-fisa-section-702/">The
Intercept revealed in November 2017</a>, 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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
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415 863.9977
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