Some of the Federal Bureau of Investigation’s warrantless searches through the National Security Agency’s enormous troves of communications data violated the law and the Constitution, according to secret surveillance court rulings partially declassified on Tuesday.
The program in question, known as Section 702 surveillance, has roots in the national-security tools set up by the George W. Bush administration following the Sept. 11, 2001, terrorist attacks.
It was later enshrined in law by Congress to target the electronic communications of non-Americans located overseas. The program is principally used by the National Security Agency to collect certain categories of foreign intelligence from international phone calls and emails about terrorism suspects, cyber threats and other security risks.
The bureau’s so-called backdoor searches, long regarded by civil libertarians as a government end-run around warrant requirements, were overly broad, the court found. They appear to have affected what a judge on the court called “a large number of individuals, including U.S. persons”.
On one day in December 2017 alone, the court found, the FBI conducted 6,800 queries of the NSA databases using Social Security numbers. The government, in secret, conceded that there were “fundamental misunderstandings” among some FBI personnel over the standards necessary for the searches.
The legal fight over the FBI’s use of the surveillance tool has played out in secret since the courts that adjudicate these issues under the Foreign Intelligence Surveillance Act of 1978 rarely publicize their work.
“The FBI’s conduct clearly shows that giving the government warrantless access to Americans’ communications will lead to fishing expeditions and abuse,” said Jake Laperruque, senior counsel with the Project on Government Oversight’s Constitution Project.
In addition, the NSA and the CIA can also warrantlessly search the vast Section 702 databases for information on Americans.
Senator Ron Wyden, the intelligence committee member who has sounded the loudest alarms about the backdoor-search provision, said the FISA Court ruling showed that Congress should never have accepted the FBI’s assurance that it was unable to account for its backdoor searches. He also indicated the government was still hiding evidence of wrongdoing.