ACLJ Files Federal Lawsuit Against Biden's FBI Over FISA Abuse and Unconstitutionally Spying on Millions of Americans


John Monaghan

December 29, 2022

Earlier this year, the ACLJ began an investigation of the FBI’s well-documented abuse of FISA surveillance.

Under the law, the FBI can go to the Foreign Intelligence Surveillance Act (FISA) Court (also called the FISC) and get permission to spy on foreign individuals through having access to the raw data of a person’s phone calls, texts, emails, and so forth. But the law is quite clear in protecting the privacy rights of American citizens and respecting the provisions of the Fourth Amendment of the U.S. Constitution. As a matter of fact, it is against the law to spy on an American using the provisions of this Act.

Only non-U.S. citizens can have their data queried this way, and it is assumed that the non-U.S. target is also not in the United States. If a U.S. citizen is incidentally caught up in communications with the target of “warrantless” surveillance, their privacy and identity is to be strictly protected through what is called “minimization” or masking. Section 702 of FISA authorizes the Attorney General and the Director of National Intelligence to jointly approve of this “warrantless” surveillance. And the investigation must be related to national security. No other topic or potential crime can be the basis of such surveillance.

However, as we previously noted, “The Wall Street Journal recently reported that, in 2021, the FBI ‘performed potentially millions of searches of American electronic data’ without a warrant.”

In fact, the Annual Statistical Transparency Report Regarding the Intelligence Community’s Use of National Security Surveillance Authorities (drafted by the Office of the Director of National Intelligence) stated:

In the first half of the year, there were a number of large batch queries related to attempts to compromise U.S. critical infrastructure by foreign cyber actors. These queries, which included approximately 1.9 million query terms related to potential victims—including U.S. persons—accounted for the vast majority of the increase in U.S. person queries conducted by [the] FBI over the prior year. A batch query is when [the] FBI runs multiple query terms at the same time using a common justification for all of the query terms. Each of the query terms in a batch query is counted as a separate query. These particular large batch queries were reviewed by the Department of Justice and found to be compliant with the FBI’s Section 702 querying procedures.

But, as the Statistical Report mentions, to quote our Freedom of Information Act (FOIA) request:

In 2021, the FBI conducted a total of an estimated 3,394,053 “U.S. Person queries of unminimized Section 702-aquired [sic] contents and noncontents for foreign intelligence information and/or evidence of a crime.” §702(f)(2) requires the FBI to obtain a FISC Order prior to querying for a matter unrelated to foreign intelligence, about a U.S. person about a criminal investigation unrelated to national security. However, the Report states that no FISC Order was obtained in 2021. Further, it identified four instances where the FBI queried even though “a FISC Order was required pursuant to Section 702(F)(2) but not obtained prior to reviewing the results of a query.”

We sent a FOIA request to the FBI demanding more information about this clear violation of millions of Americans’ constitutional rights.  The FBI timely admitted that it had received the request but then radio silence.  It was as if the FBI filed our request in the “Let’s just ignore it and maybe it will go away” box.

So we just filed a lawsuit in federal court to get the records, in order to get the truth of what happened.

Read our entire Complaint here but the paragraphs below show the tone, in relevant part:

  1. To summarize, the Plaintiff sought “records pertaining to the FBI’s noncompliance with Section 702 of the Foreign Intelligence Surveillance Act (FISA) in 2021.” Pl.’s FOIA Request to FBI, Ex. A.

  2. Plaintiff provided pertinent information in its Request: “Pursuant to FBI FOIA regulation 6 C.F.R. §5.3(b), this Background addresses ‘the date, title or name, author, recipient, and subject matter of the record[s]’ requested, to the extent known.’” Pl.’s FOIA Requests, Ex. A.

  3. On July 18, 2022, the Defendant acknowledged receipt of Plaintiff’s FOIA Request again. See FBI Acknowledgement attached as Exhibit B.

  4. The Acknowledgement stated, in part: “This acknowledges receipt of your Freedom of Information Act (FOIA) request to the FBI, dated July 5, 2022.” It also stated: “Future correspondence about your FOIPA Request will be provided in an email link unless the record’s file type is not supported by the eFOIPA system.”

  5. Since July 18, 2022, Defendant has neither sent a determination nor produced any documents.

  6. On December 27, 2022, the Defendant’s FOIPA system states, in part: “The FBI's FOIPA Program is searching the FBI's indices for potentially responsive documents. You may be contacted via formal letter for all fees and/or negotiation issues that may apply.” See, FBI FOIPA Status attached as Exhibit C.

The FBI will have 30 days in which to file an Answer (where it admits facts or asserts a defense) or a FRCP 12(b)6 Motion to Dismiss (for defenses on technical grounds) after it receives service, which should be any day now.  In our other FOIA cases, they have tried to assert both, usually on the last possible day, so now we wait and see.  We expect a response in late January or early February.  We will keep you posted.