May 04, 2022, 01:02 am
The feds still use warrantless surveillance to invade the privacy of millions of Americans. A new transparency report from the Office of the Director of National Intelligence (ODNI) shows that from December 1, 2020, to November 30, 2021, the FBI used its Foreign Intelligence Surveillance Act (FISA) powers to search the communications of up to 3,394,053 Americans without a warrant.
Under FISA, this type of snooping is technically legal. But there is a strong argument that it is unconstitutional, violating Americans' 4th Amendment rights.
"Today's report sheds light on the extent of these unconstitutional 'backdoor searches,' and underscores the urgency of the problem," said Ashley Gorski, a senior staff attorney with the American Civil Liberties Union, in a statement.
The ODNI report's main thrust is about the use of FISA powers, which allow various forms of federal spying. For the first time, "includes the number of queries using U.S. person identifiers run by FBI" against information acquired under Section 702 of FISA Title VII.
Section 702 collection targets non-U.S. persons outside the U.S. and does not require a probable cause court order. (Authorities must instead seek permission from the Foreign Intelligence Surveillance Court, which basically greenlights all such requests.)
A total of 232,432 people were Section 702 targets in 2021.
"Under the law, targets need not be suspected of wrongdoing; they can include journalists, academics, lawyers, and human rights workers abroad," Gorski points out. "The U.S. government sweeps up its targets' emails, text messages, and other communications, including their communications with Americans—all without a warrant."
Within this data, federal authorities—including the National Security Agency, the CIA, and the FBI—may snoop on Americans, too. And the FBI has the broadest authority to do so.
Whereas other agencies can only search Section 702-acquired data for foreign intelligence information, the ODNI report notes that the "FBI is authorized to conduct queries that are both reasonably likely to return foreign intelligence information and…queries that are reasonably likely to return evidence of a crime":
If there were 232,432 Section 702 targets, how did we get from there to as many as 3,394,053 people's communications being searched? Because it isn't just the immediate targets who get swept up in these spying expeditions. The second number represents "the number of U.S. person queries of contents and noncontents that the FBI conducts to retrieve foreign intelligence information and/or evidence of a crime from unminimized Section 702-acquired collection," the ODNI report explains.
Unminimized information is "information for which a determination has not been made as to whether it contains foreign intelligence information." This means identifiable data about individual Americans has not been excised or redacted.
The reason we can only say "up to 3,394,053" people and not the exact total is because the number of U.S.-person queries don't correspond directly to the number of the people. (To quote the report: "A single U.S. person might be associated with 10 unique query terms including name, social security number, passport number, phone number, multiple email addresses, etc. These 10 identifiers could be run 10 different times throughout the reporting period, resulting in 100 queries associated with a single individual.") In addition, a "U.S. person" could mean a specific citizen or lawful permanent resident or it could mean a U.S.-based corporation.
"Though the FBI's arithmetic is fuzzy, it's clear that the scale of the problem is enormous," Gorski commented on Twitter.
"For anyone outside the U.S. government, the astronomical number of FBI searches of Americans' communications is either highly alarming or entirely meaningless," declared Sen. Ron Wyden (D–Ore.) in a statement. "Somewhere in all that over-counting are real numbers of FBI searches, for content and for noncontent—numbers that Congress and the American people need before Section 702 is reauthorized."
"The FBI must also be transparent about the particular circumstances in which it conducted a staggering 1.9 million additional queries in 2021," Wyden added. "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. Baseline transparency is essential if the federal government wants to hold such sweeping surveillance powers."
"The report doesn't say the [FBI] activity was illegal or even wrong. But the revelation could renew congressional and public debates over the power U.S. agencies have to collect and review intelligence information, especially data concerning individuals," comments Inkl. "In comparison, fewer than 1.3 million queries involving Americans' data were conducted between December 2019 and November 2020."
Here is how the ODNI report explained the spike in numbers:
https://reason.com/2022/05/02/the-fbi-se...last-year/
https://reason.com/wp-content/uploads/20..._FINAL.pdf
Under FISA, this type of snooping is technically legal. But there is a strong argument that it is unconstitutional, violating Americans' 4th Amendment rights.
"Today's report sheds light on the extent of these unconstitutional 'backdoor searches,' and underscores the urgency of the problem," said Ashley Gorski, a senior staff attorney with the American Civil Liberties Union, in a statement.
The ODNI report's main thrust is about the use of FISA powers, which allow various forms of federal spying. For the first time, "includes the number of queries using U.S. person identifiers run by FBI" against information acquired under Section 702 of FISA Title VII.
Section 702 collection targets non-U.S. persons outside the U.S. and does not require a probable cause court order. (Authorities must instead seek permission from the Foreign Intelligence Surveillance Court, which basically greenlights all such requests.)
A total of 232,432 people were Section 702 targets in 2021.
"Under the law, targets need not be suspected of wrongdoing; they can include journalists, academics, lawyers, and human rights workers abroad," Gorski points out. "The U.S. government sweeps up its targets' emails, text messages, and other communications, including their communications with Americans—all without a warrant."
Within this data, federal authorities—including the National Security Agency, the CIA, and the FBI—may snoop on Americans, too. And the FBI has the broadest authority to do so.
Whereas other agencies can only search Section 702-acquired data for foreign intelligence information, the ODNI report notes that the "FBI is authorized to conduct queries that are both reasonably likely to return foreign intelligence information and…queries that are reasonably likely to return evidence of a crime":
Quote:While FBI receives Section 702 collection for only a small percentage of the total Section 702 targets (approximately 4.4% in March 2022), the frequency with which FBI uses U.S. person query terms is greater than other agencies.
The difference in frequency is largely attributable to FBI's domestic-focused mission versus the other agencies' foreign-focused missions. FBI queries are often initiated through tips and leads relating to domestic matters, provided by the public and domestic partners, meaning they are more likely to involve U.S. persons.
If there were 232,432 Section 702 targets, how did we get from there to as many as 3,394,053 people's communications being searched? Because it isn't just the immediate targets who get swept up in these spying expeditions. The second number represents "the number of U.S. person queries of contents and noncontents that the FBI conducts to retrieve foreign intelligence information and/or evidence of a crime from unminimized Section 702-acquired collection," the ODNI report explains.
Unminimized information is "information for which a determination has not been made as to whether it contains foreign intelligence information." This means identifiable data about individual Americans has not been excised or redacted.
The reason we can only say "up to 3,394,053" people and not the exact total is because the number of U.S.-person queries don't correspond directly to the number of the people. (To quote the report: "A single U.S. person might be associated with 10 unique query terms including name, social security number, passport number, phone number, multiple email addresses, etc. These 10 identifiers could be run 10 different times throughout the reporting period, resulting in 100 queries associated with a single individual.") In addition, a "U.S. person" could mean a specific citizen or lawful permanent resident or it could mean a U.S.-based corporation.
"Though the FBI's arithmetic is fuzzy, it's clear that the scale of the problem is enormous," Gorski commented on Twitter.
"For anyone outside the U.S. government, the astronomical number of FBI searches of Americans' communications is either highly alarming or entirely meaningless," declared Sen. Ron Wyden (D–Ore.) in a statement. "Somewhere in all that over-counting are real numbers of FBI searches, for content and for noncontent—numbers that Congress and the American people need before Section 702 is reauthorized."
"The FBI must also be transparent about the particular circumstances in which it conducted a staggering 1.9 million additional queries in 2021," Wyden added. "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. Baseline transparency is essential if the federal government wants to hold such sweeping surveillance powers."
"The report doesn't say the [FBI] activity was illegal or even wrong. But the revelation could renew congressional and public debates over the power U.S. agencies have to collect and review intelligence information, especially data concerning individuals," comments Inkl. "In comparison, fewer than 1.3 million queries involving Americans' data were conducted between December 2019 and November 2020."
Here is how the ODNI report explained the spike in numbers:
Quote: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 FBI over the prior year.
https://reason.com/2022/05/02/the-fbi-se...last-year/
https://reason.com/wp-content/uploads/20..._FINAL.pdf