The phone records, emails, and data of millions of American citizens collected by the NSA haven’t just been sitting in a vault somewhere. Rather, they’ve been searched and pored over by the FBI, apparently unconstitutionally.
According to a Foreign Intelligence Surveillance Act (FISA) court ruling, issued last year and declassified this week, the FBI has been searching through records collected by the National Security Agency’s (NSA) mass surveillance program. By searching the records of American citizens without warrants, the FBI may be violating the Constitutional rights of millions of citizens.
The NSA’s mass surveillance program – active since 2008 and made public by whistleblower Edward Snowden in 2013 – is supposed to intercept communications between Americans and foreigners, as long as the foreigners are the ones targeted. As online communications make up the bulk of those targeted, the agency collects data from points where this data leaves the country. However, reams of domestic communications flowing through these points is harvested as well.
What happens with that data is governed by Section 702 of the Foreign Intelligence Surveillance Act, which requires government agencies to “minimize” the sharing and retention of data on Americans. An update to the act in 2018 requires the FBI to obtain a warrant each time it accesses this data in connection with a criminal investigation, and for the Director of National Intelligence to ensure that this access is carried out “consistent with the requirements of the Fourth Amendment,” which prohibits unreasonable searches and seizures.
The agency has done neither, according to the ruling.
In 2017, it ran around 3.1 million searches related to American citizens or foreign nationals residing in the US. In the same timeframe, the NSA and CIA carried out a combined 7,500 searches.
Furthermore, many of these searches were unrelated to ongoing criminal investigations, as stipulated by the 2018 FISA update. At one point, the agency searched for data relating to 70,000 people “associated with” the FBI, indicating agents were spying on each other. On one day alone, the agency queried 6,800 social security numbers. One agency contractor searched himself and his relatives, and agency staff regularly searched for potential informants and witnesses who were uninvolved in any criminal case.
The FBI dismissed these apparent abuses as “fundamental misunderstandings” of the FISA rules by its agents. Moreover, the agency told the FISA court that justifying every warrantless data search would “hinder the FBI’s ability to perform its national security and public safety missions.”
Why the NSA’s “incidental” data collection on American citizens would be of such use to the FBI is another question. The fact that the agency searched the database more than 3 million times in a year suggests that the NSA’s collection is anything but incidental. Secondly, documents leaked by Snowden reveal the value of such data to the FBI.
One line in the ruling states that the FBI searched for NSA surveillance data on “a potential recipient of a FISA order.” Put simply, the FBI spied on someone before deciding on whether or not to get a warrant to spy on them.
With the FBI dismissing circumvention of the Fourth Amendment as “misunderstandings,” and with Congress last year passing a Section 702 update that many civil liberties activists felt was watered down, it remains unclear whether the most recent ruling will lead to any actual change.
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