F.B.I. Violated Surveillance Program Rules After George Floyd Protests and Jan. 6 Attack
F.B.I. analysts improperly used a warrantless surveillance program to search for information about hundreds of Americans who came under scrutiny in connection with two politically charged episodes of civil unrest: the protests after the 2020 police killing of George Floyd and the Jan. 6, 2021, attack on the Capitol, a newly declassified court ruling shows.
While the F.B.I. has tightened restrictions since then, the disclosure of the misuses is likely to provide fodder to critics of the program as the Biden administration seeks to persuade Congress to renew it.
The surveillance program, known as Section 702, empowers the government to collect, without a warrant and from American companies like Google and AT&T, the communications of foreigners abroad who are targeted for intelligence purposes — even when they are talking with or about Americans.
Intelligence and law enforcement officials can search the database of communications intercepted under Section 702 using the names or other identifiers of Americans, but only under certain circumstances. The F.B.I. has repeatedly failed to comply with those limits, leading to court scrutiny.
In the newly declassified ruling, the presiding judge of the Foreign Intelligence Surveillance Court, Rudolph Contreras, permitted the program in April 2022 to operate for another year based on changes the F.B.I. had made in 2021 and 2022 to improve compliance.
Judge Contreras wrote that he was encouraged by the efforts to improve the F.B.I.’s practices and that preliminary indications suggested the measures were “having the desired effect.” Still, he cautioned that he could impose greater restrictions.
“Compliance problems with the F.B.I.’s querying of Section 702 information have proven to be persistent and widespread,” he wrote.
The ruling, which was redacted in places, also described some of the incidents in which officials did not comply with the standard for searching the Section 702 repository using Americans’ identifiers. That standard stipulates that a search can be conducted when there is a specific reason to believe that information about foreign intelligence or a crime involving that American would be in a repository of messages collected from foreigners abroad.
In June 2020, the decision said, an official searched the repository using a batch of 133 identifiers of people arrested “in connection with civil unrest and protests between approximately May 30 and June 18, 2020,” to determine whether there was any counterterrorism-related information in the repository about them.
That period corresponds to the nationwide Black Lives Matter protests after the killing of Mr. Floyd in Minneapolis, some of which descended into riots. The F.B.I. initially defended the queries as compliant, but the Justice Department apparently disagreed.
The ruling also details several incidents in which F.B.I. officials ran queries of people suspected of involvement in the Jan. 6 riot at the Capitol. One line discussed “three batch queries consisting of approximately 23,132 separate queries” presumed to be Americans. A portion of the decision was then redacted, and it continued, “was being used by a group involved in the Jan. 6 Capitol breach.”
Other incidents included separate query batches of 13 and five Jan. 6 suspects; “two queries for a person under investigation for assaulting a federal officer in connection with the Capitol breach”; and a partly redacted discussion of 360 queries in connection with various “domestic drug and gang investigations, domestic terrorism investigations and the Capitol breach.”
In a background briefing with reporters, a senior F.B.I. official said that in those cases, the analysts misunderstood the standard and were required to undergo additional training.
Judge Contreras’s opinion described several other notable misuses. In one, an unidentified official conducted a batch query for over 19,000 donors to a congressional campaign.
While the analyst later explained that the campaign was the target of a foreign influence operation, the Justice Department’s national security division “determined that only eight identifiers used in the query had sufficient ties to foreign influence activities to comply with the querying standard.”
A senior Justice Department official said in the background briefing that the candidate had lost the election to an incumbent lawmaker.
The subsequent changes the F.B.I. made included altering its system so the Section 702 repository is excluded by default when agents search the bureau’s various databases, requiring high-level approval for large batch queries with many identifiers, and having officials detail how their queries comply with the standard.
The total number of queries for Americans — and the frequency of incidents in which F.B.I. officials made queries that did not comply with limits — appears to have dropped as a result. An intelligence community report last month said that the F.B.I. made 119,383 such queries in 2022, down from nearly three million in 2021.
The disclosure of the incidents comes as national security agencies lobby Congress to reauthorize Section 702. While Congress did so in 2012 and 2018, the program faces stronger headwinds this cycle, as Republicans who have adopted former President Donald J. Trump’s hostility toward the F.B.I. and surveillance have joined with civil libertarians who have long been critical of the law.
Privacy advocates, for their part, have revived a proposal to require the government to obtain a warrant from the surveillance court before it may search the Section 702 repository using an American’s identifiers.
Elizabeth Goitein of the Brennan Center for Justice at New York University School of Law, who backs that idea, said the violations disclosed in the opinion, particularly for the political campaign donors and those arrested in connection with the racial justice protests, showed the necessity of that proposal. “The opinion provides frightening proof of the need for a warrant requirement before agencies conduct U.S. person queries,” she said.
Judge Contreras’s ruling separately approved a request by the National Security Agency to use Section 702 in a novel way, after the judge rejected the objections of an independent expert, Laura K. Donohue, a Georgetown University law professor appointed to critique the government’s proposal.
That part of the opinion was heavily censored, but the Office of the Director of National Intelligence described it as “a highly sensitive technique” to be used against “overseas targets in a manner that is reasonably expected to result in no incidental collection” of Americans’ communications.
Senator Ron Wyden, an Oregon Democrat who strongly supports tightening limits on the surveillance program, said in a statement that he would push the office to make more of the opinion public.
“There is important, secret information about how the government has interpreted Section 702 that Congress and the American people need to see before the law is renewed,” he said.
The intelligence community on Friday also released another newly declassified opinion showing that in 2021, Judge Contreras approved a physical search of two locations under novel circumstances as consistent with another part of the Foreign Intelligence Surveillance Act.
Before approving the searches, the judge appointed two outside experts to help analyze the issue. The visible portions of the ruling mentioned that the government would receive the data of agents of a foreign power as a result, and the judge required officials to limit what data it supplied. The details were otherwise censored.
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