The FBI’s Assault on Your Privacy as an American Citizen

Last week, the Office of the Director of National Intelligence (ODNI) declassified an opinion by the chief judge of the Federal Intelligence Surveillance Court (FISC) that contained alarming information: The Federal Bureau of Investigation (FBI) continues to violate the law and illegally spy on United States citizens. Judge James E. Boasberg concluded that the court is “concerned about the apparent widespread violations.” You should be concerned, too.

The matter involves so-called “warrantless” searches of data collected by the National Security Agency (NSA). In 1978, Congress created the FISC (sometimes called the FISA Court) through the Foreign Intelligence Surveillance Act of 1978 (FISA). Congress amended the Act in 2008 and legalized the use of “warrantless” wiretaps in Section 702 of the Act. These actions were created due to the ever-growing threat of international terrorism. In our high-tech era, the term “wiretapping” is not quite apropos. The law deals with the collection of all manner of information through phone calls, emails, and text messages.

The data is collected by the NSA. But three other entities can also receive the raw info: the CIA, the National Counterterrorism Task Center, and the FBI. However, the FBI is the only one of these with a law enforcement mission. They can use the information to arrest an individual and to recommend charges.

Under the law, the FBI can go to the FISA Court and get permission to spy on an individual 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.” Section 702 of the Act 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.

In 2018, Judge Boasberg ruled that the FBI’s procedures for this matter were inadequate to meet Fourth Amendment privacy standards. (This amendment forbids the unreasonable search and seizure of a person’s houses, papers, or personal effects, etc.) He ordered the FBI to provide in writing the specific reasons why a person’s info was to be accessed and searched. In 2019, the judge scolded the FBI for still improperly searching records of individuals. For example, he noted that one FBI analyst made a query for 16,000 people even though only seven of them had any connections to an FBI investigation. The judge noted numerous incidents of searches being conducted without the court’s authorization and other searches where none of them were related to national security.

Keep in mind, the FISA Court’s repeated concerns came separate from, but at about the same time as, the Department of Justice’s Inspector General’s (IG) report that pointed out numerous times where the FBI misled, or even lied to, the FISA Court. IG Horowitz found 17 significant errors of omission and 51 incorrect or unsupported factual assertions by the FBI in their petitions to conduct a search related to the Trump Campaign and the presidency of Donald Trump. The abuses of the FISA system were apparently widespread.

The latest critique by Judge Boasberg was made in November 2020. However, it remained classified until last week.

In spite of promises by Christopher Wray, the FBI Director, the abuses continue. The promised reforms of the FBI have not taken place. Last year Wray called the improper actions taken by the FBI to obtain FISA warrants “unacceptable” and stated they “cannot be repeated.” But they are being repeated.

This week Congressmen Jim Jordan and Andy Biggs sent a letter demanding answers from Christopher Wray. This is a matter of grave concern about violations of the law. The FBI, as the nation’s premier law enforcement agency, is not above the law. The FISC judge determined the “FBI’s failure to properly apply its querying standard when searching section 702-acquired information was more pervasive than previously believed.”

In fact, as the congressional letter notes:

The FISC noted that an FBI official responsible for “limited background investigations” conducted over 120 queries of section 702-acquired data using the names and other identifiers of individuals who had requested to participate in the FBI’s “Citizens Academy”—a community outreach program. The FBI also queried the names and other identifiers of individuals who needed access to an FBI field office for office repairs, and others who sought to report tips or were victims of a crime. Other violations involved FBI personnel who failed to opt out of querying raw FISA-acquired information for reasons that did not meet its intent, such as an FBI analyst who conducted more than 100 “queries for analytic paper.”

We support the Congressmen’s concerns and questions as to why the FBI is still abusing the Foreign Intelligence Surveillance Act. Along with them, the ACLJ wants to know why the agency is seeking information through the FISA Court that is unrelated to national security and what Director Wray is doing to “prevent the FBI from using Section 702 authorities to surveil, investigate or otherwise examine U.S. citizens.”

We are currently evaluating our legal options. And we’re already preparing a Freedom of Information Act (FOIA) request on these horrific abuses. We can and must get to the bottom of this and end the FBI’s assault on the privacy of American citizens.