FBI misused controversial surveillance tool to investigate Jan. 6 protesters
The FBI improperly searched the personal communications of Americans who participated in the Jan. 6 attack on the Capitol and the 2020 protests over police violence, newly declassified documents show.
The inappropriate searches of data intercepted under the Foreign Intelligence Surveillance Act (FISA) were originally detailed in a classified April 2021 certification issued by the court that oversees the statute and found roughly 300,000 abuses logged between 2020 and early 2021.
The Biden administration on Friday also shared a second, significantly redacted document that detailed a technique for the FBI to conduct physical searches for the first time under FISA.
The release by the Office of the Director of National Intelligence and the Justice Department comes as a divided Congress is debating how to proceed with reauthorization of Section 702 of FISA. The law, which allows U.S. intelligence agencies to conduct warrantless surveillance of non-U.S. citizens abroad, will expire at the end of the year without congressional action.
The court opinion unsealed Friday also discloses what officials termed a “highly sensitive” surveillance technique powered by 702, though the exact details remain classified.
Lawmakers on both sides of the aisle have chastised the FBI about compliance issues when it comes to querying the massive FISA database. The law was last renewed in 2018, and the bureau’s activities drew similar criticisms from lawmakers then.
Some in Congress want to require warrants for searching 702 data, a move the bureau has argued would hinder its ability to investigate leads or aid victims.
The FISA court’s opinion, which congressional lawmakers were first briefed on last year, spans most of 2020 into early 2021. The bureau had begun implementing changes to how analysts could search the database before the opinion was issued but has since taken additional measures to ensure compliance with the statute.
“Our audits were seeing that there was this continued misunderstanding of the query standard, and we were analyzing the root causes of it. We then worked with the FBI to figure out what remedial measures they needed to put in place to address these incidents,” Rebecca Richards, head of ODNI’s civil liberties office, said during a call with reporters on Friday.
“I do not believe that there is a lack of common understanding anymore from all of our recent query reviews that we're doing,” she added.
The court document cites several instances where FBI analysts conducted searches of individuals who participated, or were suspected of participating, in the Jan. 6, 2021, attack on the Capitol.
In one instance, an analyst ran 13 queries of individuals to determine if they had foreign ties, only to later claim she did not remember why she ran those specific names.
A senior FBI official told reporters that audits of database searches often occur several months after they originally took place, making it “difficult” for the analysts to “remember the specifics.”
The official also said the bureau had undertaken steps to ensure “accountability” for the personnel who conducted the wrongful searches.
In another example, a bureau employee conducted a query of 19,000 donors to a congressional campaign. Officials said the episode was separate from the searches Rep. Darrin LaHood (R-IL) said targeted him.
“The candidate, who was running against an incumbent, was not elected to Congress” because the incumbent was re-elected, an ODNI spokesperson said.
A footnote in the document states that in June 2020 the FBI the communications of 133 people who were arrested “in connection with civil unrest and protests” between May 30 and June 18, 2020. That would coincide with the protests and counter-protests that roiled the country following the murder of George Floyd.
The senior FBI official declined to say if the searches were related to that unrest and that the search occurred because of “a lack of understanding on the part of the person who ran it and that person received remedial training.”
“There is now no daylight in the FBI's interpretation of the query standard and how it can be applied with DOJ's interpretation. It's the same interpretation. And we are all consistent in our understanding and application of that,” the official said, noting that a bureau query audit released last week showed improved compliance.
“We’re not trying to hide from this stuff, but this type of noncompliance is unacceptable,” the official said.
Today’s disclosures were spurred in part at the behest of lawmakers, according to Richards, adding key members were briefed Thursday about the action.
She said ODNI and DOJ are also working on publicly providing shortened summaries of joint assessments that show overall compliance across the intelligence community with 702 in the “very near future.”
Chris Wray told us we can sleep well at night because of the FBI’s so-called FISA reforms.— Rep. Jim Jordan (@Jim_Jordan) May 19, 2023
But it just keeps getting worse.https://t.co/KhyRtckRp5
Richards dismissed that Friday's actions were in any way connected to the release earlier this week of the report by special counsel John Durham that skewered the FBI for actions agents took during the 2016 probe scrutinizing then-presidential candidate Donald Trump's campaign and its alleged ties to Russia.
“We've been walking our way through trying to have some decisions and push out a form of [court] opinion consistent with the law,” she said.
The declassified opinion brought swift condemnation from Capitol Hill.
FBI Director Christopher Wray “told us we can sleep well at night because of the FBI’s so-called FISA reforms. But it just keeps getting worse,” tweeted House Judiciary Committee Chair Jim Jordan (R-OH), who railed against the surveillance law in the past, confusing the timeline of when those reforms were instituted.
Sen. Ron Wyden (D-OR), a senior member of the Senate Intelligence Committee, said the opinion revealed “shocking abuses” of Section 702.
“These abuses have been going on for years and despite recent changes in FBI practices, these systematic violations of Americans’ privacy require congressional action,” he added. “If Section 702 is to be reauthorized, there must be statutory reforms to ensure that the checks and balances are in place to put an end to these abuses.”
Martin Matishak is a senior cybersecurity reporter for The Record. He spent the last five years at Politico, where he covered Congress, the Pentagon and the U.S. intelligence community and was a driving force behind the publication's cybersecurity newsletter.