Some big surveillance news from a just released FISA Court opinion: FBI has been repeatedly using Section 702—a warrantless surveillance power meant for foreign intelligence—for domestic law enforcement in violation of the law
Here's the key details (1/12)
https://www.intel.gov/assets/documents/702%20Documents/declassified/20/2020_FISC%20Cert%20Opinion_10.19.2020.pdf

Some background: FISA §702 is a warrantless surveillance power

It’s only supposed to target foreigners abroad, but it grabs tons of Americans’ communications

It’s meant for foreign intelligence, but when Americans’ chats are collected they can be used for law enforcement (2/12)

The FBI can exploit the "Backdoor Search Loophole” to search for Americans’ communications in §702 databases (all collected without warrants), and then use that information for domestic law enforcement investigations (3/12)

The new FISA Court opinion says FBI has been conducting these backdoor searches for domestic policing repeatedly (even under current lax rules this isn't allowed without court approval)

40 queries were found focused on getting Americans’ comms for domestic law enforcement (4/12)

Despite §702 being framed as all about foreign intelligence, many of these searches were for investigations completely outside the sphere of national security, centering on crimes like health care fraud & corruption

This is warrantless surveillance for domestic policing (5/12)

The FBI violated the meager limits that exist for Backdoor Searches. The FISA Court found “widespread violations of the querying standard” imposed in 2019 in response to a previous pattern of misconduct

And improper searches it found are likely part of a broader pattern (6/12)

The FBI is required to get court approval before conducting §702 searches purely for domestic policing

But FBI systems default setting let personnel skip saying they were doing a wholly domestic search, which let those searches go through without FISA Court sign off (7/12)

Essentially this means the FBI was able to conduct warrantless domestic searches without the FISA Court approval they were supposed to get, at best because personnel were sloppy, at worst because using the default settings gave plausible deniability for abuse (8/12)

Four main takeaways: 1st, despite politicians ranging from Adam Schiff to Donald Trump saying §702 is all about foreign intel, it’s clearly being warped into a warrantless surveillance tool for domestic policing.

This needs to end, and the law needs to be changed (9/12)

2nd, in 2018 Congress passed “reforms” to §702, limiting it narrow a set of domestic uses (like terrorism), but the rule only applied for submissions in court

This allows unrestricted investigative uses (like for health care fraud), a flaw we're now seeing exploited (10/12)

3rd, ODNI previously reported almost 0 cases of FBI conducting §702 searches for domestic policing, but we now know it happened dozens of times

Either FBI dramatically ramped up this tactic, or these reports have been extremely dishonest about # of domestic searches (11/12)

4th, the FBI wants to reauthorize parts of FISA that expired last year (such as Section 215 of the PATRIOT Act)

There is absolutely no way Congress should renew those provisions until these serious problems are addressed and the Backdoor Search Loophole is closed

END (12/12)