UPDATE: On October 17, a coalition of almost 40 civil rights and civil liberties organizations sent a letter to the House Judiciary and Intelligence Committees recommending key reforms to Section 702.
While it’s unclear how valuable Section 702 of the Foreign Intelligence Surveillance Act has been in keeping Americans safe, there is no doubt about its role in undermining Americans’ constitutional rights. The FBI likely violated Fourth Amendment rights of Americans when it conducted tens of thousands of unauthorized searches in a government database between 2017 and 2018, according to a secret court ruling made public by the Office of National Intelligence. In many cases, there was no evidence of criminal activity to prompt the searches. This finding is especially troubling considering the FBI’s rampant abuse of its powers to target activists and social movements and treat them as threats.
“The court concluded that the FBI had been improperly searching a database of raw intelligence for information on Americans—raising concerns about oversight of the program, which as a spy program operates in near total secrecy,” The Wall Street Journal reported.
In a statement released after the ruling was made public, DRAD noted that “Judge Boasberg’s ruling did not do away with backdoor searches. It ruled that some of the FBI’s searches were overly broad and thus violated the Fourth Amendment. While we appreciate this as a victory for civil liberties, Congress needs to take proactive measures to close the backdoor loophole.”
While all Americans should be disturbed about this flagrant abuse of power, political activists and vulnerable communities who are disproportionally targeted by law enforcement are particularly at risk. For example, in recently uncovered documents, the FBI described Black Lives Matter activists as a national security threat, calling them “black identity extremists”. Several environmental activists who participated in protests and acts of civil disobedience near constructions sites are being monitored by anti-terror fusion centers. And it’s not a stretch to imagine the FBI conducting illegal fishing expeditions on law abiding Muslim-Americans who have family overseas- mostly because it’s already been happening for almost two decades.
The ruling debunks oft-repeated claims that the number of searches involving Americans is “incidental” or that the FBI can be trusted to implement its own safeguards to prevent abuses. FBI agents reportedly used Section 702 powers to conduct searches on thousands of Americans- including more than 6,800 queries in one day- and failed to distinguish between persons in the U.S. and foreign intelligence targets, as required by law.
In many instances, the court found that the searches did not produce evidence of a crime or “foreign intelligence information”, the statutory standard by which FBI agents have permission to access the database. Improper searches became so commonplace, however, that FBI agents often told DOJ colleagues that they “cannot remember” why a search was conducted.
For those keeping track at home, Section 702 of the Foreign Intelligence Surveillance Act underpins PRISM and Upstream, two of the most sweeping government programs used to spy on Americans that were exposed by Edward Snowden in 2013. It essentially enables the government to access massive troves of electronic communications of people in and outside of the U.S.
Under Section 702 law enforcement is prohibited from intentionally targeting U.S. persons or “any person known at the time of acquisition to be located in the United States.” But when the law was reauthorized in 2018 for another 6 years, Congress failed to meaningfully address the loopholes that allow the FBI and other law enforcement agencies to gather and search private electronic communications of Americans without a warrant- despite warnings from DRAD and others that the Fourth Amendment right against illegal searches was likely to be violated.
Until the loopholes in Section 702 are permanently closed, millions of innocent Americans will continue to be exposed to warrantless government surveillance. And with a White House that is not shy about attacking its political opponents, Americans will continue to be