FBI Used Electronic Surveillance in 3.4M Warrantless Searches
WASHINGTON — The FBI is enduring a backlash after intelligence agencies’ annual transparency report to Congress last month revealed that it conducted nearly 3.4 million warrantless searches of Americans’ electronic data in the previous year.
The agency collected the information as part of its foreign surveillance activities.
The FBI invoked authority under Section 702 of the Foreign Intelligence Surveillance Act but some members of Congress and civil rights groups accused the agency of abusing its authority.
Section 702 of the Foreign Intelligence Surveillance Act authorizes intelligence officers to monitor foreign electronic communications — such as emails and texts — without warrants.
It defines foreign intelligence as “information that relates to (and if concerning a U.S. person, is necessary to) the ability of the United States to protect against actual or potential attack or other grave hostile acts of a foreign power or agent of a foreign power.”
The 3.4 million warrantless searches last year were up from 1,324,057 a year earlier, according to the intelligence report.
The Office of the Director of National Intelligence report defended the way it carried out the surveillance and the statistics it gathered on electronic eavesdropping by saying, “These statistics add further context to the rigorous and multi-layered oversight framework, including oversight conducted by independent judicial and legislative entities, which is designed to safeguard the civil liberties and privacy of the persons whose information is acquired pursuant to these national security authorities.”
The intelligence agency could not guarantee high numbers of the searches would end soon.
“All of the factors that coincided in 2021 provide examples of how the number of U.S. person queries may fluctuate in future years based upon both investigative needs and/or changes in policy and system design,” the report said.
Some critics of the agency were skeptical of its assurances about protecting civil rights. They included Sen. Ron Wyden, D-Ore., a member of the Senate Intelligence Committee.
“For anyone outside the U.S. government, the astronomical number of FBI searches of Americans’ communications is either highly alarming or entirely meaningless,” Wyden said in a statement. “Somewhere in all that over-counting are real numbers of FBI searches, for content and for non-content — numbers that Congress and the American people need before Section 702 is reauthorized.”
Congress is considering whether to reauthorize the Foreign Intelligence Surveillance Act after it expires next year.
“The FBI must also be transparent about the particular circumstances in which it conducted a staggering 1.9 million additional queries in 2021,” Wyden said. “Finally, the public deserves to know whether the FBI has fully addressed the extensive abuses of its 702 search authorities that have been documented for years.”
FBI officials said the high number of warrantless searches resulted mostly from their investigation of one suspected Russian computer hacking case, which it did not name. The hackers were trying to disrupt critical U.S. infrastructure, which led to 1.9 million of the FBI surveillance queries, the FBI reported.
Wyden’s comments reflect ongoing disputes about the Foreign Intelligence Surveillance Act that also have played out in court judgments.
Congress originally passed the act in 1978 but amended it after the Sept. 11, 2001, attacks to broaden the FBI’s authority for electronic surveillance.
Subtle definitions of “electronic surveillance” could empower warrantless searches of communications and computer devices belonging to innocent U.S. citizens who connected through the internet to foreigners, according to attorneys who argued the cases.
In the September 2020 case of United States v. Moalin, the 9th Circuit Court of Appeals said, “We conclude that the government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act when it collected the telephony metadata of millions of Americans.”
Last month, the Supreme Court appeared to endorse some of the electronic surveillance when it ruled in the case of Federal Bureau of Investigation et al v. Fazaga et al that intelligence agencies could continue the clandestine information gathering as long as they were protecting “state secrets” for national defense.
Former President Donald Trump raised concerns about the Foreign Intelligence Surveillance Act when he accused the FBI of invoking its authority in a misguided effort to spy on his campaign for alleged Russian influence.
Former government contractor Edward Snowden heightened public awareness of the act in June 2013 when he leaked classified documents disclosing the broad reach of the intelligence community’s domestic and foreign surveillance.
The American Civil Liberties Union released a statement Friday that accused the FBI of “unconstitutional backdoor searches” of Americans’ private information. It asked Congress to intervene to protect their privacy.
Tom can be reached at email@example.com and at https://twitter.com/tramstack
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