How To Deter FBI Surveillance Crime: Make Them Write It Down

Edited by Sam Thielman

SO IN THE LAST EDITION I wrote that my next Nation column was going to discuss the FBI's backdoor searches of the unfathomably large warrantless-surveillance troves belonging to the NSA. That's still the plan. As I write this, my editor Christopher Shay has edited the draft I filed and moved it on to the fact-checkers. But there's something I came across in the recently-declassified April 21, 2022 surveillance order by FISA Court Presiding Judge Rudolph Contreras that prompted my column. It seems to recontextualize the much-promoted recent decline of the FBI backdoor searches. It didn't have a place in the Nation column, so here I am, blogging about it.

Am I making too much of this? [No.—Sam.] In a post that's going to get deep into the weeds? [Yes.—Sam.] We'll see!

IN LATE APRIL, the Office of the Director of National Intelligence (ODNI) released its annual report about how it uses its vast, Fourth-Amendment-obliterating surveillance powers under a pivotal War on Terror law called Section 702.

Section 702 is, among other things, the wellspring of the NSA's PRISM and Upstream surveillance efforts. The FBI routinely searches through its sister agency’s warrant-free surveillance trove in a practice James Ball and I documented, thanks to Edward Snowden. Sen. Ron Wyden (D-Ore.) calls this practice the "backdoor search provision." Officially, the FBI is only authorized to perform such (warrantless) searches through the (warrantless) troves for two reasons: to uncover evidence of connection to a foreign power; and to find evidence of crime.

The FISA (Foreign Intelligence Surveillance Act) Court is a secret legal panel that approves the procedures the NSA, and other agencies using NSA-collected data, are supposed to follow when performing surveillance pursuant to Section 702. Often, over the past decade-plus, the FISA Court has found that the FBI's representations of its use of the NSA troves don't match how expansive or intrusive it really is. Most notably, in 2018, the FISA Court found the FBI backdoor searches were "inconsistent…with the requirements of the Fourth Amendment." The FBI typically promises to do better and offers up some procedural tightening of its backdoor searches. Bear in mind that, for a decade, the FBI didn't even have to so much as document those processes, until Congress, in 2018, made them do so. Spoilers, but: documentation matters!

Given this history of abuse and misrepresentation, it seemed all the more significant that, in the April ODNI report, the FBI's backdoor searches through the NSA troves declined, rather than increased. The FBI was quick to offer itself up to reporters as a model of probity. On a background call to spin reporters about the ODNI report—I wasn't on this one, but I've been on many like it, and sorry, that's what these briefings are—an FBI official averred that the report "aptly illustrates how built-in oversight that Congress put in the statute works to … repair trust and transparency."

The volume of these backdoor searches is still substantial. Depending on how you count, the ODNI report says that between December 2021 and November 2022, the number of times the bureau queried the mass-surveillance 702 troves of Americans' information is either 119,383 or 204,090. (For years, the bureau wouldn’t affirm that the number of searches serves as a proxy for the number of Americans affected by the searches, so keep that in mind now that they're implying otherwise when useful.) The FBI's assertion of its good stewardship is also politically necessary. Section 702 expires this year. Renewing it is the U.S. intelligence community's top congressional priority for 2023. Politico titled the relevant FBI sub-section of its piece "Showing Restraint."

But Judge Contreras' partially-declassified FISA Court order re-authorizing the 702 surveillance procedures, released on May 19, casts that "restraint" in a different light.

CONTRERAS, WRITING IN APRIL 2022, revealed what was behind a massive amount of FBI backdoor 702 searches that preceded the drop. The FBI was performing heavy warrantless surveillance on people associated with the Black Lives Matter protests and the January 6 insurrection. The implications of this are the subject of my forthcoming Nation column (which we also send to FOREVER WARS subscribers), so we won't get into them here. But keep in mind that when we talk about the FBI's backdoor searches through surveillance databases supposedly designed to track foreign activity on U.S. soil, this kind of domestic spying is what we're referring to in practice.

These searches were performed "without a specific factual basis to believe the query was reasonably likely to return foreign intelligence information or evidence of crime," Contreras revealed. That's a violation of the standard Congress set in 2018, the last time it renewed Section 702. A stickler might call it "breaking the law."

Contreras is writing for a secret court and doesn't have to be explicit about the relevant history. But, as Liza Goitein recently recapped, even though Congress instructed the FBI in 2018 to document its backdoor searches, "the FBI failed to comply for two years," until the FISA Court and then the (very rarely convened) FISA Court of Review made them do so in 2019. Now, from Contreras, we learned that after this, the FBI queried the ostensibly-foreign-focused Section 702 databases for BLM and J6 participants. Only after all of that, per Contreras' order, did the FBI tighten its 702 querying procedures, in the summer of 2021. It is hard not to read that as a move to avoid jeopardizing FISA Court approval of them.

These querying changes include "chang[ing] the default setting of [FBI] systems" used to perform the queries, so that, among other things, "users have to make an intentional decision to opt into" a backdoor search. FBI systems used to default to "no" when its version of Clippy asked if someone was performing an "evidence of crime-only" search, but users must now "affirmatively indicate whether or not a U.S. person search term was conducted to retrieve only evidence of crime." To perform a so-called "batch job"—basically, a bulk search of "100 or more queries" through a bulk-surveillance database—an FBI official now needs to specify that they have a supervising attorney's approval. (Not a judge's approval, mind you.)

The changes seem to have been internally controversial. Late 2021 seems to be a period of "apparent disagreement and confusion" at the FBI and Justice Department over how the rules were to be implemented. It's a little hard to tell because of all the redactions in Contreras' order, as well as representations from the FBI and Justice Department that as best I can tell haven't been declassified. But Contreras references a November 2021 FBI declaration to the secret court that acknowledged the Court was upset by apparent violations and pledged to "addres[s]" the court's concerns. And at least one intelligence agency's 702 systems—its name is blacked out—still "lacks the capability to record U.S. person queries and the justification for them," according to Contreras' April 2022 order.

Here's where we come to the recent drop in FBI backdoor searches. Contreras looks at the FBI's 79,848 "U.S.-person and presumed-U.S. person queries of unminimized Section 702 information" during the period between September and November of 2021. That's a decline of about half from the 159,634 FBI backdoor searches between June and August of that year, when the changes were starting to go into effect. Contreras reasonably calls this a "precipitous decline" from over three million FBI backdoor searches from the period in 2021 between January and May.

"The only apparent explanation for that decline," assesses Contreras, "is the modification to [redacted] as of June 29, 2021 and [redacted] as of August 26, 2021 that require users to affirmatively elect to run searches against unminimized Section 702 information. Such a reduction in overall queries should, in and of itself, result in fewer violations."

NOW, DOES THIS RESEMBLE what the FBI told reporters—that the decline in backdoor searches "aptly illustrates how built-in oversight that Congress put in the statute works to … repair trust and transparency"? Did the bureau's dogged commitment to following the law prompt it to "Show Restraint" on the searches? That's for you to judge.

But I would observe that the "built-in oversight that Congress put in the statute" back in its 2018 renewal of Section 702 isn't what resulted in the changes, since, if it had, we would have seen this drop in backdoor searches back then. Instead, the FBI first appealed its compliance with the statute itself and lost. Then, following years of FISA Court scoldings about the FBI violating its backdoor-search rules, and, we now know, extensively spying on Americans with dubious connections to foreign powers, the FBI changed its backdoor-search procedures so as to somewhat document its backdoor searches, as Congress had originally demanded in 2018. Those changes appear to have caused "apparent disagreement and confusion," and we'll surely learn more about the impact of those disagreements in subsequent FISA Court declassifications. But the changes also prompted the FBI to simply stop searching the 702 database as much.

You could say, as the FBI and the Justice Department started saying well in advance of ODNI partially declassifying Contreras' report, that the system worked, because the FBI incorporated FISA Court feedback. Alternatively, you could say that once the FBI was compelled by the FISA Court to perform such basic tasks as minimally recording the queries and the purposes of backdoor searches, the changes partially deterred the FBI from using a warrant-free search through a warrant-free database. Spinning isn't the same thing as lying, but they're cousins.

I say that the FBI was partially deterred by these changes. After all, the ODNI report's most recent figures found at least 119,383 FBI backdoor searches through the 702 troves from December 2021 and November 2022. As Contreras put it in April 2022, before that statistic was collected, "notwithstanding this foreign-directed targeting, the extent to which Section 702 acquisitions involve U.S. persons is substantial in the aggregate." And he wrote that after the "precipitous decline" in backdoor searches.

But such a "precipitous decline" in searches, resulting from such modest changes, might suggest that the purpose of the FBI's backdoor searches is what Wyden's term—“backdoor search”—implies: to evade long-standing legal and Constitutional protections of Americans' privacy. Once the FBI had to make a record of what it was doing, its officials thought better of performing many, many such searches in the first place.

Everyone involved in criminal justice typically agrees that deterrence matters for preventing crime. Maybe it's time to use that model—crime—to describe and punish these FBI surveillance violations.

WHEN CONTRERAS' OPINION was declassified earlier this month, Wyden, the member of the Senate intelligence committee most committed to curbing intelligence abuses, was hardly satisfied by the drop in backdoor searches. He implied that there is much, much more we still do not know about Section 702.

“I am disappointed at the extent of the redactions in the opinions released today. I will continue to urge the DNI to inform the public about how the government and the FISA Court are interpreting the law," Wyden said on May 19. "There is important, secret information about how the government has interpreted Section 702 that Congress and the American people need to see before the law is renewed.”

If you’re familiar with Wyden's history on the committee, you may remember that this is what Wyden said about the PATRIOT Act before Snowden's disclosures revealed that the NSA and Justice Department had jury-rigged PATRIOT Section 215 to authorize collecting every American's phone records. To hear him repeat his "Secret Law" argument with reference to Section 702 is ominous. As to what should happen to Section 702, check out my forthcoming Nation column, which, again, paid FOREVER WARS subscribers will get in their inboxes automatically.

I KNOW THAT'S BEEN A LOT TO READ, and reporting on surveillance requires getting into some dense weeds that can be hard to slog through. I appreciate you sticking with me through all this. But make sure not to miss Nick Turse's reporting for The Intercept that renders both the Vietnam-era U.S. bombing of Cambodia and Henry Kissinger's culpability for it far more egregious than previously known. I keep mentioning the Rolling Stone obituary of Kissinger I wrote last year, and I can't help feeling like my (rolling) thunder was stolen a bit. But in all seriousness, it's a testament to both Turse and The Intercept for pursuing accountability 50 years after the bombing.