Watchdog: FBI must have court approval to spy on Americans.
The FBI and Other Intelligence Agencies Should Require Court Approval to Access Spy Data on Americans, Watchdog Says
Congress should mandate that analysts from the FBI and three other agencies obtain authorization from the U.S. Foreign Intelligence Surveillance Court before searching for information on Americans in a vast database, according to the Privacy and Civil Liberties Oversight Board. In a nearly 300-page report, the board emphasized the importance of individualized and particularized judicial review to safeguard Americans’ privacy rights.
The board’s report, released on Sept. 28, states that ”The most critical safeguard for Americans’ privacy rights is to require individualized and particularized judicial review for all U.S. person query terms.” You can read the full report here.
Sharon Bradford Franklin, chair of the panel and a Democrat appointee, expressed concerns about the FBI’s warrantless searches of the database for information on Americans. She stated that the bureau has failed to demonstrate the “unique value in criminal investigations” resulting from these searches and has shown “disturbing and continuing compliance violations” of the search rules.
While the FBI has made some changes, Franklin emphasized the need for independent and external review due to the persistent pattern of noncompliance. Under Section 702 of the Foreign Intelligence Surveillance Act, government agencies can conduct warrantless searches on non-Americans outside the United States, which may incidentally collect information on Americans. The FBI, CIA, NSA, and National Counterterrorism Center can search the database without court approval.
However, the agencies currently have access to data acquired through warrantless searches without a court order, despite repeated violations of the access rules.
FBI workers have repeatedly violated the rules for using the database, including conducting inappropriate searches for a U.S. senator and Jan. 6, 2021, protesters, as confirmed by courts and watchdogs.
Ms. Franklin and two other Democrat appointees voted to release the report, while the two Republican appointees voted against its release.
Although all board members agree on the value of Section 702, they differ on how to improve it. Republicans Beth Williams and Richard DiZinno argue that the Foreign Intelligence Surveillance Court is not the appropriate body to review proposed queries. Instead, they propose agencies sending reports to Congress on sensitive queries that have already been conducted, ensuring prompt awareness of any potential misuse of intelligence authority.
In an unsealed opinion from May, the Foreign Intelligence Surveillance Court stated that the FBI uses its own standards for Section 702 searches, requiring queries to be “reasonably likely” to retrieve foreign intelligence information or evidence of a crime. However, the court found that FBI workers were violating this standard.
These violations included searches for information on suspected or confirmed Jan. 6 suspects, donors to a congressional campaign, and individuals involved in protests and riots following the killing of George Floyd in Minnesota.
The FBI claims to have implemented reforms after these improper searches, including enhanced training for workers on proper database access. A bureau spokesperson previously stated, “The errors described in the Foreign Intelligence Surveillance Court’s opinion are completely unacceptable. As a result of the audits that revealed these instances of noncompliance, the FBI changed its querying procedures to make sure these errors do not happen again.”
Earlier this year, data revealed that 4 percent of recent queries violated the FBI’s standards.
The privacy board emphasized that searches for Americans’ information “present some of the most serious privacy and civil liberties harms.” They noted that, in most cases, government officials are not required to demonstrate suspicion of wrongdoing regarding the Americans they seek information on.
According to the board, the FBI’s practices pose the greatest threats to Americans’ privacy. While there have been some reforms in recent years, they have not adequately protected privacy and civil liberties.
One of the FBI’s violative practices is the failure to request a warrant from the Foreign Intelligence Surveillance Court to search the database. In 2021 and 2022, there were six instances where such an order was required, but FBI personnel neglected to seek one.
Although the FBI has reduced the number of searches conducted, it still performs significantly more searches than the other agencies. In 2022, the FBI conducted 119,383 searches for information on Americans, compared to a combined total of 4,684 searches by the CIA, NSA, and National Counterterrorism Center.
The Privacy and Civil Liberties Oversight Board, established in 2007 based on the 9/11 Commission’s recommendation, operates within the executive branch.
Section 702 is set to expire at the end of the year. Some lawmakers are pushing for reforms to the law, while the White House opposes reauthorization.
The FBI and the White House did not respond to requests for comment on the new report.
Some Republicans have previously expressed support for requiring court approval to access the database, while some Democrats aim to enhance the protection of Americans’ communications.
The last report from the privacy board on FISA was issued in 2014, with unanimous approval of 10 recommendations.
What are the concerns raised by the Privacy and Civil Liberties Oversight Board regarding FBI searches of the database?
FBI searches of the database violated the agency’s internal rules, leading to concerns about the potential infringement of Americans’ privacy rights. In response to these concerns, the Privacy and Civil Liberties Oversight Board, an independent agency within the executive branch, has released a report calling for stricter safeguards to protect citizens’ privacy.
The report emphasizes the need for individualized and particularized judicial review through the U.S. Foreign Intelligence Surveillance Court. The board argues that this requirement for court approval is the most critical safeguard for Americans’ privacy rights.
Sharon Bradford Franklin, the chair of the panel and a Democrat appointee, has expressed concerns about the FBI’s warrantless searches of the database for information on Americans. She has highlighted the bureau’s failure to demonstrate the unique value of these searches in criminal investigations and its disturbing and continuing compliance violations of the search rules.
Section 702 of the Foreign Intelligence Surveillance Act allows government agencies to conduct warrantless searches on non-Americans outside the United States, incidentally collecting information on Americans. The FBI, CIA,
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