The FBI has come under scrutiny for misusing a powerful digital surveillance tool on more than 278,000 occasions, targeting individuals such as crime victims, Jan. 6 riot suspects, and people arrested during protests following the death of George Floyd in 2020.
The revelations came to light in a recently unsealed court document obtained by the Washington Post.
According to the document, FBI officials attribute the misuse to a misunderstanding between their employees and Justice Department lawyers regarding the proper use of Section 702 of the Foreign Intelligence Surveillance Act (FISA).
The agency has already taken steps to address the issue, but the implications of these failures may pose challenges in renewing the law, set to expire at the end of the year.
Additionally, it may further fuel criticisms from former President Donald Trump and his supporters who have long accused the FBI of bias against conservatives.
The Foreign Intelligence Surveillance Court, responsible for overseeing Section 702, has exerted pressure on the FBI to rectify the problems.
In an unsealed April 2022 opinion, the court threatened to enforce its own changes to FBI practices if the agency fails to improve its compliance.
The Section 702 database is a vast repository of electronic communications and other information accessible to the National Security Agency and the FBI. The database can be searched when agents have reasonable grounds to believe it will yield foreign intelligence or evidence of crimes.
Although it is primarily intended for targeting foreign intelligence and terrorism information, civil rights advocates have long expressed concerns about the broad scope of the database, arguing that its use requires careful oversight.
The unsealed court document details numerous instances of misuse. In one case, the FBI conducted searches on 133 individuals arrested during civil unrest and protests that took place between May 30 and June 18, 2020, following George Floyd’s killing.
The FBI justified these searches as an effort to uncover counterterrorism information, but the document leaves unclear the nature of the information collected or its subsequent use.
The document also revealed instances of querying FISA information for individuals listed in police homicide reports, including victims, witnesses, and suspects, between 2016 and 2020.
The Justice Department determined that these searches violated rules because there was no reasonable basis to expect they would yield foreign intelligence or evidence of a crime.
Further examples include an FBI employee conducting over 23,000 separate queries of presumed Americans after the Jan. 6, 2021, Capitol riot, without indications of foreign influence.
The document notes that no raw Section 702 information was accessed as a result of these queries.
Another incident involved an analyst querying the information of over 19,000 donors to a congressional campaign under the assumption of foreign influence, despite only eight identifiers having sufficient ties to foreign influence activities.
Senior law enforcement officials maintain that these problems do not reflect the FBI’s current practices and assert that significant changes have been made to ensure compliance.
The agency has implemented stricter protocols, requiring agents and analysts to explicitly seek and justify searches of Section 702 information. Batch searches involving a large number of people must now receive attorney approval.
While recent months have seen a significant decline in Section 702 searches involving U.S. residents or companies, with a drop of over 90% compared to the previous year, officials attribute this decrease to the Justice Department’s audit, which identified substantial compliance failures within the FBI.
The revelations of the FBI’s misuse of surveillance powers come in addition to previous criticism from the Justice Department’s inspector general over the agency’s use of different types of surveillance court orders.
The legitimate claims will tend to muddy the waters with respect to Trump apologist John Durham’s special counsel report, which sought to minimize the evidence of crimes committed by the 2020 election loser and support Republicans who question the FBI’s ability to responsibly handle its powers.