Is the FBI Conducting Unlawful Searches on Americans? The ACLJ Is Going To Find Out

The Wall Street Journal recently reported that, in 2021, the FBI “performed potentially millions of searches of American electronic data” without a warrant. In response to this very troubling report, the ACLJ filed a Freedom of Information Act (FOIA) request to get to the bottom of this outrage. Specifically, we requested “records pertaining to the FBI’s noncompliance with Section 702 [50 U.S. Code § 1881a] of the Foreign Intelligence Surveillance Act (FISA) in 2021.”

As a brief background, Section 702(a) states, in part, that the “Attorney General and the Director of National Intelligence may authorize jointly, for a period of up to 1 year from the effective date of the authorization, the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.”

Importantly, this information-gathering tool has limits. Specifically, an acquisition authorized under Section 702(a) may not, inter alia:

intentionally target any person known at the time of acquisition to be located in the United States . . . [or] intentionally target a United States person reasonably believed to be located outside the United States . . . [or] intentionally acquire any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States[.]

An acquisition, moreover, “shall be conducted in a manner consistent with the fourth amendment to the Constitution of the United States.” And Section 702(f)(2)(A) makes it clear that a court order is required for “FBI review of certain query results in criminal investigations unrelated to national security.”

Despite all of the legalese, this is where it gets very interesting, and even troubling. Per the 2021 Director of National Intelligence Annual Statistical Transparency Report (DNI Report) referenced in our FOIA request:

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.

As an aside, when the government determines that one of its own agencies is in compliance, we all know there may be more to the story. Be that as it may, the DNI Report further explained that from December 2020 to November 2021, the FBI conducted an estimated 3,394,053 “U.S. Person queries of unminimized Section 702-a[c]quired contents and noncontents for foreign intelligence information and/or evidence of a crime.” There are about 330 million people in the United States. 3.4 million queries could account for a significant portion of the U.S. population whose data was surveilled. This is staggering and problematic on its face.

However, based on the DNI Report, there were four identified instances in which a Foreign Intelligence Surveillance Court order was required pursuant to Section 702(f)(2) but not obtained prior to reviewing the results of a query “that was not designed to find and extract foreign intelligence information and was performed in connection with a predicated criminal investigation that does not relate to national security.”

In short, we sent our FOIA request to find out if the FBI is conducting unlawful searches on Americans. We will continue to press this issue until we get answers.