THE FOREIGN INTELLIGENCE Surveillance Court found that the FBI may have violated the rights of potentially millions of Americans — including its own agents and informants — by improperly searching through information obtained by the National Security Agency’s mass surveillance program.
U.S. District Court Judge James E. Boasberg, who serves in the District of Columbia and the FISA court, made his sweeping and condemnatory assessment in October 2018 in a 138-page ruling, which was declassified by the U.S. government this week.
“These opinions reveal devastating problems with the FBI’s backdoor searches, which often resembled fishing expeditions through Americans’ personal emails and online messages.”
To longtime critics of the government’s mass surveillance program, the FBI’s abuses are confirmation that federal law enforcement agents are combing through the communications of Americans without warrants, in violation of Fourth Amendment protections against unreasonable searches and seizures.
“These opinions reveal devastating problems with the FBI’s backdoor searches, which often resembled fishing expeditions through Americans’ personal emails and online messages,” said Patrick Toomey, a staff attorney for the American Civil Liberties Union’s National Security Project. “But the court did not go nearly far enough to fix those abuses. The Constitution requires FBI agents to get a warrant before they go combing through our sensitive communications.”
The ruling concerns the FBI’s ability to access communications obtained through the NSA’s mass surveillance program, the existence of which was revealed in documents provided by whistleblower Edward Snowden. Critics of Snowden’s decision to leak classified NSA documents noted at the time that safeguards existed to prevent Americans’ communications from being searched improperly. The declassified FISA court ruling, however, shows that few safeguards existed at all.
The NSA’s mass surveillance program operates as a series of technologies and authorities that allow the government to intercept communications while in transit over the internet, as well as obtain communications directly from at least eight large technology companies without the need for warrants. These authorities, created in 2008 and renewed in 2018 with some minor reforms, are the result of the expansion of the Foreign Intelligence Surveillance Act. The law created the secret FISA court to oversees its application.
Under traditional FISA authorities established in 1978, the U.S. government may intercept the communications of agents of foreign governments and terrorist organizations if the intelligence community can demonstrate legal justification to the FISA court.
The expansion of FISA authorities, known as Section 702, allows for monitoring to be approved in bulk by the court through what is essentially a recipe for mass surveillance. This surveillance cannot legally target Americans but sweeps up all communications that fit the so-called selectors — akin to search terms, as well as other data based on patterns — and can produce enormous amounts of incidentally collected information, including communications from U.S. citizens. This data is stored and can later be searched by government agencies.