Watching the Watchmen: Do the FBI’s new Section 702 Querying Procedures Comply with the Fourth Amend
By Tucker Kelleher-Brozost
On October 8, the Office of the Director of National Intelligence (ODNI) released opinions by the U.S Foreign Intelligence Surveillance Court (FISC) and the U.S. Foreign Intelligence Surveillance Court of Review (FISC-R) ruling that certain FBI surveillance practices exceeded their legal authority. Under Section 1872 of Title 50 of the United States Code, the ODNI is required to review for release significant interpretations of law by the FISC and the FISC-R, and to make them publicly available to the greatest extent practicable. The ODNI disclosed that, in response to the FBI seeking approval for its querying procedures of intelligence data, including the communications of U.S. persons, the Foreign Intelligence Surveillance Court (FISC) ruled that aspects of the FBI’s surveillance operations were inconsistent with statutory minimization procedures required by FISA and the Fourth Amendment. While the FISC approved the FBI’s procedures in part, it found that (1) the FBI failed to keep adequate records of database searches involving U.S. persons, and (2) FBI personnel were not required to adequately justify queries that would return the communications of U.S. persons. While the FBI has since received approval for its revised procedures, the decision refreshes the debate about the executive branch’s capacity to adjudicate its own access to private correspondence of U.S. persons.
Section 702 of the FISA Amendment Act of 2008 authorizes the FBI to access communications data intercepted by the NSA under certain circumstances. An outgrowth of the Bush administration’s post-September 11 national security apparatus, Section 702 allows the NSA to surveil phone calls and emails of non-U.S. persons overseas. The NSA cannot intentionally target communications of U.S. persons wherever located or of any persons known to be within the United States, however Americans’ data may be collected incidentally if they are communicating with a targeted individual overseas. Last year, Congress reauthorized Section 702 for six more years, but required that the Director of National Intelligence (DNI) and Attorney General adopt querying procedures “consistent with the requirements of the Fourth Amendment,” a standard that the FBI’s 2018 FISA application failed to satisfy.
While the FISC often rejects or modifies orders sought by government, the October 2018 FISC decision released this week dealt a significant rebuke to the FBI, finding that they failed to comply with the obligations imposed by the FISA Amendment Reauthorization Act of 2017 and the Fourth Amendment. While the FISC found that the FBI querying procedures largely complied with Section 702, it found two areas where the FBI deviated from their statutory and constitutional authority. First, the FISC found that the FBI’s retention of all query terms without a system to differentiate U.S. and non-U.S. persons failed to meet the newly imposed requirements of Section 702(f)(1)(B) of FISA. The absence of such a system frustrates efforts to ensure that U.S. persons are treated differently than non-U.S. persons overseas in accordance with their Fourth Amendment protections. By comparison, the querying procedures submitted to the FISC and utilized by the NSA, CIA, and the National Counterterrorism Center require documentation of U.S. persons’ querying terms and a contemporaneous documentation of their justification for conducting the query of U.S. persons.
Second, the FISC found several instances that demonstrated a misunderstanding or misapplication of the query standard, allowing searches that were not likely to return foreign intelligence information or evidence of a crime. In the October 2018 FISC opinion, Judge James E. Boasberg concluded that the FBI was conducting searches of “broad and apparently suspicionless nature” under the mistaken belief that if the aggregate of thousands of individual communications was reasonably likely to return evidence of a crime, then the standard is satisfied (Opinion at 78-79). These aggregate queries included a March 2017 search of over 70,000 emails and phone numbers associated with FBI employees and an April 2018 search of more than 57,000 communications associated with non-FBI U.S. citizens. The individual rights of the U.S. persons whose communications are returned in these bulk searches are significantly diluted when the standard of reasonable expectation of evidence is applied to tens of thousands of people collectively. While senior FBI officials eventually flagged the issues in the program, these incidents support concerns about oversight and the FBI’s authority to search the database without individual warrants for information on U.S. persons.
After the FISC determined that the FBI’s querying procedures did not comply with the relevant statutory or constitutional requirements, the FBI appealed the ruling (with the FISC-R granting a stay on implementing changes pending appeal), and in August 2019 the FISC-R affirmed the FISC ruling in part. Without addressing the question of constitutional deficiency, the FISC-R held that the record keeping procedures utilized by the FBI were insufficient under Section 702(f)(1)(B) of FISA. One month later, the FBI amended its querying procedures to require: (1) that the FBI’s query records differentiate between U.S. person queries and all other queries, (2) that FBI personnel record a written justification stating why a U.S. person query was reasonably likely to retrieve foreign intelligence information or evidence of a crime prior to reviewing the contents returned by such a query, and (3) that the FBI make available records generated under these requirements to enable oversight by the Department of Justice and ODNI. Following the approval of its amended procedure in September 2019, the FBI is working to complete the necessary modifications to two of its three applicable systems by mid-December 2019 and will modify or discontinue the third system.
The crucial debate raised by the FBI’s new procedures is whether the watchmen can be trusted to watch themselves, or whether the Constitution requires the courts to play a more active role. The FBI’s new querying procedures make clear that the executive branch retains authority over access authorization, relying primarily on the Department of Justice and the ODNI to oversee the actions of FBI personnel, rather than the courts. In response to the release of the FISC and FISC-R opinions, Senator Ron Wyden (D-Or.), a vocal critic of the warrantless Section 702 queries (who has previously called these searches “an end run around the Constitution”), released a statement declaring that this revelation “underscor[es] the need for the government to seek a warrant before searching through mountains of private data on Americans.”
On the other side of the debate are those that emphasize the FBI’s need to access Section 702 information to reach the level of probable cause. Asha Rangappa, a former FBI counterintelligence agent and Senior Lecturer at Yale’s Jackson Institute for Global Affairs, has argued that a warrant requirement would be overly burdensome because it would require agents to build a case through aggressive and intrusive tactics to gain access to Section 702 information that “might ultimately prove to be benign—or even exculpatory.” Rangappa notes that the FBI databases are “federated,” meaning that FBI personnel may search multiple databases with one query, and that the personnel cannot know beforehand that such a search will return a 702 “hit.” This argument is premised on the FBI’s system of notifying non-national security personnel of 702 “hits” but keeping the substance of the Section 702 data hidden, such that only agents with FISA training and clearance may access the full results.
However, this position fails to address concerns that, even if agents and analysts with lower clearance cannot access the 702 information, FBI personnel alone are responsible for determining whether there is sufficient justification for searching the previously collected communications of U.S. persons. In the words of Jake Laperruque at the Project on Government Oversight, “[i]f the government is using a foreign intelligence surveillance authority that collects Americans’ communications and data without court approval on the front end, it should follow the judicial approval process when deliberately seeking out Americans’ communications and data on the back end.” He notes that, in any other context, if the government were to seek a warrant based on an anonymous tip or a single lead, it would be unthinkable for the court to approve such a request, yet the FBI retains the authority to grant its agents this access without court approval.
The new querying procedures adopted by the FBI in September increase scrutiny on FBI queries of Section 702 data by requiring that records of query terms on U.S. persons are kept separate and that contemporaneous justifications are provided for each U.S. query term used. However, while this increased scrutiny will undoubtedly eliminate the more egregious instances of misuse—the court revealed that an FBI contractor searched the database for information on himself, other FBI personnel, and his relatives—it does not ensure that Americans’ Fourth Amendment protection from unreasonable searches are respected. The data collected under Section 702 authorization includes the contents of personal conversations of U.S. persons that are under no suspicion of having committed a crime. An FBI agent with FISA clearance can access the NSA’s intercepted and stored communications by convincing her supervisor that there is a reasonable expectation that the communications contain information with national security or foreign intelligence implications. In light of these new revelations, it is apparent that those supervisors are not the exacting gatekeepers that the Fourth Amendment and FISA require, and that the courts must play a more significant oversight role over the querying of data collected from U.S. persons. When government agents can surreptitiously collect the electronic communications of U.S. persons without a warrant or suspicion, the requirements of the Fourth Amendment must be satisfied on the back end with a demonstration to a court that there are sufficient grounds to gain access to the information.