Oversight

Who Is Dumb Enough to Trust the FBI and Trump Officials? Congress.

A newly revealed document shows shocking new spying abuses by the FBI — while they told politicians they were respecting Americans’ privacy

Law enforcement officers walk out of the J. Edgar Hoover FBI Building in Washington, DC. Photo: Mark Wilson/Getty Images

OOnce more, we have a major privacy scandal on our hands, and once more we’re reminded why we can’t trust our elected officials.

In a newly declassified court ruling the FBI has been secretly violating the privacy rights of Americans on a massive scale by trawling for private communications on huge swaths of citizens without a warrant. The shocking opinion didn’t just show that the FBI has been breaking both the law and the Constitution — it has made liars out of many national security officials and should be an embarrassment to the politicians in Congress who have let these abuses occur.

The secret Foreign Intelligence Surveillance Court (FISA court) released a heavily redacted ruling on Tuesday that was written in October 2018. In it, the court documents the tens of thousands of times that FBI agents between 2017 and 2018 were illegally dipping into a huge National Security Agency (NSA) database and purposefully searching for emails and other communications of Americans.

Congress should immediately hold public hearings on this civil liberties disaster. (And while they are at it, Democratic lawmakers should apologize for their shameful vote that handed the Trump administration these dangerous powers in the first place.) What’s more, the lawsuits filed challenging these programs should clearly move forward, and the government should have to defend its actions in open court.

The NSA program under which this illegal spying initially occurred is often referred to as “Section 702” surveillance, named after the law that supposedly authorizes it. The NSA and FBI ostensibly “target” a foreigner with surveillance under this program, and any Americans they talk to are swept up into the database. The FBI can then go back and search for Americans’ information, thereby avoiding getting a judge-signed warrant as they would need if they “targeted” the American first.

Since the Snowden revelations, Section 702 has been highly controversial with the American public. It’s the law that underpinned the notorious PRISM surveillance program that implicated large tech companies like Google and Facebook in the NSA’s spying. It’s also the law that the NSA has used to tap underseas internet cables that enable untargeted mass collection of data from foreigners and Americans alike.

For years, civil liberties advocates had warned the Section 702 surveillance program was a privacy nightmare. Section 702 already allows the FBI to search for information on Americans for criminal evidence or for foreign intelligence information — already incredibly wide latitude, considering the phrase “foreign intelligence information” can be stretched to include all sorts of innocuous topics.

But, as the Wall Street Journal originally reported, the FISA court found the FBI was still making illegal searches on a systematic level that “involved data related to tens of thousands of emails or telephone numbers — in one case, suggesting that the FBI was using the intelligence information to vet its personnel and cooperating sources.”

According to The Daily Beast’s Spencer Ackerman, “On one day in December 2017 alone, the court found, the FBI conducted 6,800 queries of the NSA databases using Social Security numbers.”

Making this even worse, the law last came up for renewal in Congress at the end of 2017, just as many of the violations laid out in the court opinion were secretly occuring.

Guess who was right to be suspicious?

While we didn’t know the scope or scale of these violations at the time, it was still public knowledge that Section 702 allowed for these types of “backdoor” warrantless searches on Americans’ communications. Yet supporters of the law included the Trump administration and politicians on both sides of the aisle. Its backers insisted Section 702 had proper safeguards and was built to protect Americans’ privacy. Then-House Speaker Paul Ryan maintained that the law was not about spying on Americans. “This is about foreign terrorists on foreign soil,” he said in January 2018, shortly before Trump signed an extension of Section 702 into law. “That’s what this is about, so let’s clear up some of the confusion here.”

A group of former national security officials wrote to Congress they could “personally attest” to the civil liberties protections in the surveillance program. It “has strong oversight and controls to ensure that the privacy and civil rights of Americans are protected,” they insisted. FBI director Christopher Wray told Congress in December 2017, “To protect privacy and civil liberties, this program has operated under strict rules and has been carefully overseen by all three branches of the government.”

Guess who was right to be suspicious? After Tuesday, we now know that at the exact same time all these national security officials were attesting to the law’s privacy “protections,” the FBI was flagrantly violating them on a massive scale.

While Congress did renew Section 702 authorities in January of 2018 without any additional privacy protections, they did add a modest amendment that would at least force the FBI to count the number of times they searched for information on Americans in these vast databases. As Charlie Savage recounts in the New York Times, the bureau even resisted that meager legal requirement and continued to make large quantities of searches that violated the law.

Both the Electronic Frontier Foundation and the American Civil Liberties Union, in separate cases, have been suing the government over Section 702 surveillance for years, claiming it violates the Fourth Amendment. Both cases have slowed down to a crawl by abusive secrecy claims made by the government, which has argued that courts shouldn’t even be allowed to rule on the programs — even if they are illegal! — because the government might have to reveal state secrets in the process.

Depressingly, like with almost every other instance where intelligence agencies are found to be violating the Constitution, the FBI and other intelligence agencies will likely face no consequences that come from this court ruling. The Trump administration will likely apologize, claim it will do a better job, and the program will continue. But Congress can make sure that there is actual accountability here — if they would do what they should have done years ago.

Trevor Timm is the executive director of Freedom of the Press Foundation. His writing has appeared the New York Times, the Guardian, and the Intercept.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store