Surveillance

Report: FBI Misused Foreign Surveillance Powers To Investigate Domestic Crimes

Section 702 is supposed to be used to snoop on spies and terrorists, not Americans.

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As recently as 2019, the FBI used surveillance tools intended for tracking foreign terrorists and spies in unrelated domestic crime investigations involving Americans without even seeking secret warrants from the Foreign Intelligence Surveillance Act (FISA) Court.

The information comes from a recent certification report from the FISA Court itself, written in November but declassified and released by the Office of the Director of National Intelligence Monday.

The report documents 40 instances in which the FBI secretly accessed data collected not about foreigners but about American citizens for investigations of "healthcare fraud, transnational organized crime, violent gangs, domestic terrorism involving racially motivated violent extremists, as well as investigations connected to public corruption and bribery."

Though it is the FBI's job to investigate such crimes, in these instances they did so using data collected under the Section 702 authorities of FISA, which does not permit targeting Americans for these types of investigations. Section 702 specifically focuses on unwarranted searches of foreign targets because they don't have the protections of the Fourth Amendment and therefore their communications can be collected and reviewed. Even with that clearance, the FISA Court exists to make certain that the FBI and National Security Agency do not abuse their access against Americans—which is exactly what happened here.

When Congress renewed Section 702's authorities in 2018, they actually codified permission to use this part of the law for domestic surveillance for certain types of crimes, like human trafficking. Yet the FBI still misapplied it.

Nevertheless, despite these violations of procedure and of Americans' privacy, the FISA Court went ahead and renewed federal certification for this Section 702 surveillance. The explanation as to why actually goes back to a completely different FBI violation—when the agency screwed up its search warrants to the FISA Court when surveilling Carter Page, former Trump campaign aide. As part of the investigation into whether Donald Trump or people in his orbit had been compromised by Russian agents, they got permission to wiretap Page's communications. But the FBI cut corners on the warrant applications and omitted information that likely would have raised questions as to whether the surveillance was justified. And a subsequent audit from the Office of the Inspector General for the Department of Justice found that the FBI routinely made errors in its warrant requests to the FISA Court when asking to surveil Americans.

After those problems were publicly revealed in 2019, the FISA Court ordered the FBI to submit a formal plan to fix them. Director Chris Wray responded with a 40-point training plan to correct FBI surveillance procedures so that they're compliant with privacy protections for Americans.

This latest FISA Court report notes that these newly discovered violations took place before Wray's training program was implemented. So, as FISA Court judge James Boasberg explains in the report, they're going to assume—until they discover otherwise—that Wray's reforms fixed these problems.

I'm not kidding. Boasberg writes, "the Court finds that the proposed procedures, as reasonably expected to be implemented, comply with applicable statutory and Fourth Amendment requirements." (Emphasis mine.)

That feels like a massive shrug, given the number of mistakes the FBI has been making in both submitting proper FISA warrants and in snooping through Americans' data without warrants. But the recertification in this report comes with strings attached. Boasberg is ordering quarterly reports detailing each instance in which FBI personnel accessed Section 702–acquired information about an American that wasn't for the purpose of foreign intelligence gathering, what the information is used for, precisely how it happened, and whether it was consistent with their 702 authorities.

The increased transparency about how this FISA Court surveillance works—due to both reforms that followed Edward Snowden's disclosures as well as attention brought by the investigation of Trump's campaign—has been a boon to the public in understanding that this system is far from perfect. As we can see, even with this more visible oversight, the FBI keeps making mistakes that violate Americans' Fourth Amendment protections against warrantless searches. It's something to remember whenever anybody attempts to argue that the FBI needs more authority or more laws to combat domestic terrorism. It is not properly respecting the limits on the power it already has.

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  1. Hey Reason, no shit. Don’t know if you heard, they also used it to spy on their political enemies. Once upon a time, BTDS, this publication would have cared about that too.

    1. I’m sure the FBI will never spy on a presidential campaign again, not after the terrible price they paid–with Comey sitting in prison, and so many others awaiting trial.

      1. Hey, that one guy got probation!

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      2. Don’t worry. We had a President who had his priorities straight when he reauthorized FISA back in 2018!

        Just signed 702 Bill to reauthorize foreign intelligence collection. This is NOT the same FISA law that was so wrongly abused during the election. I will always do the right thing for our country and put the safety of the American people first!
        — Donald J. Trump (@realDonaldTrump) January 19, 2018

        1. Joe is living proof (sorta) that Hillary would’ve done better.

        2. Some of us are capable of thinking that there should have been consequences (I bet at the time Trump thought that there would be consequences for the people that spied on him) AND that Trump was wrong to reauthorize it.

        3. Oh, totally extricates any consequences for the FBI and DoJ officials that organized spying on a campaign. You got him this time Leo!

          1. I never said that the scum at the FBI shouldn’t face consequences. They absolutely should.

            But, certainly you would think that the victim of FISA abuses might be sympathetic to the plight of average Americans. I guess that was a wrong assumption.

            1. Or maybe he thought that as the head of the executive branch, he had some power over that branch, and could use that power to bring the people that abused its power to justice.

              Do you not think it’s possible that he didn’t realize how deep the corruption went? FFS, he ordered our military out of Syria, and was completely ignored and lied to by our military.

              He shouldn’t have reauthorized it, but if you assume he did it to continue to screw over Americans, and not because he was being told that those abuses would be addressed, you might have TDS.

              1. Seems like a typical response. If you disagree with anything that Trump did you suffer from TDS.

                It seems more likely, at least based on the evidence available, that Trump thinks that the FBI spying on Americans is good for Americans (he says so right there in his tweet). But the FBI spying on politicians (especially him) is a bad thing. I only point out the hypocrisy because it’s elitist thinking. The very elitism that Trump supporters claim he ran against. Yet somehow, I’m the one with delusions.

                1. “Seems like a typical response. If you disagree with anything that Trump did you suffer from TDS.”

                  I literally just said I disagreed with Trump here.

                  “It seems more likely, at least based on the evidence available, that Trump thinks that the FBI spying on Americans is good for Americans (he says so right there in his tweet).”

                  “Just signed 702 Bill to reauthorize foreign intelligence collection.”

                  He used the words foreign intelligence collection, and you changed that to spying on Americans. You’re being disingenuous, and then attributing malice towards Trump based off that. That’s why you have TDS.

                  1. He just signed a bill that extended FISA. If he thinks FISA excludes spying on Americans he’s got a pretty short memory. Maybe he’s the one with dementia?

                    1. “Just signed 702 Bill to reauthorize foreign intelligence collection. This is NOT the same FISA law that was so wrongly abused during the election. I will always do the right thing for our country and put the safety of the American people first!
                      — Donald J. Trump (@realDonaldTrump) January 19, 2018”

                      Your own quote of Trump contradicts your conclusion. If you want to move the goalposts and change your conclusion, you should at least be honest about it.

                      Also, I actually said I disagreed with Trump on this TWICE in this thread, so I will gladly accept your apology for being disingenuous about my position on that.

                2. You literally turned a comment on an attack at spying on a campaign and FISA abuse into an attack on Trump without calling out the abuse. That is probably TDS.

                3. “Seems like a typical response. If you disagree with anything that Trump did you suffer from TDS.”

                  Yep, a very typical response: TDS-addled shits *always* claim their TDS isn’t really TDS; they just find any reason they can to whine about Trump.

            2. You didn’t say it. But you somehow turned it into an attack on Trump instead. So yeah.

  2. “I’m not kidding. Boasberg writes, “the Court finds that the proposed procedures, as reasonably expected to be implemented, comply with applicable statutory and Fourth Amendment requirements.” (Emphasis mine.)”

    Well, now that Trump is no longer in office, there’s nothing to worry about.

    1. Hmm, “Well, now that Trump is no longer in office, there’s nothing to worry about.” Umm, don’t look now but that bulge from your tongue-in-your-cheek is showing. Or haven’t you been listening to AG Merrick [“I was denied a seat on SCOTUS”] Garland? He’s going after all them “Uncolored Domestic Terrorists” who may have voted for, or expressed support of Donald J. Trump; his family; his cabinet and/or his ideas. Merrick, of course, has no problem with any other group or organization that “Express Themselves” with violence, arson and murder, if, of course, they’re of the “Proper Persuasion” including political beliefs.

  3. I’m sure this isn’t the first article Reason has put up that’s critical of the FBI’s behavior towards the Trump campaign and Trump administration, but it feels like it is, doesn’t it? I don’t remember them being this forthright about it–not even during Trump’s impeachment.

    1. Preventing overt and systemic 4th Amendment violations understandably takes a back seat to preventing mean tweets.

    2. Just searching for “Carter Page” yields 77 hits. I didn’t read them all, but most are from before January 2021, and I didn’t see a headline that indicated a positive view of the surveillance.

      It took me about 3 minutes to find that. Probably similar to the time it took you to post.

      1. I didn’t see a headline that indicated a positive view of the surveillance.

        They didn’t put “We Love Surveillance!” in the headline so, they must be libertarians!

        1. To be sure.

      2. Because they mentioned Carter Page doesn’t mean anything—especially within the context of an impeachment trial.

        How many times have they mentioned Hugo Chavez or Maduro? Does that mean they’re supportive of Chavismo, too?

      3. So you spent the same amount of time to refute his observation, while complaining how little time he spent on it.

        1. He didn’t refute it, half of the links aren’t really about the investigation much. And many of them support the surveillance, especially in articles pre 2019.

      4. Some of those hits:


        Former Trump Adviser with Russian Ties Revealed as Surveillance Target

        Justifying Surveillance of Carter Page Would Have Been Pretty Easy

        Senate Memo on the Surveillance of Carter Page Suggests FBI Was Misled by Steele

        Declassification of Carter Page Warrants May Be Politically Motivated, but More Transparency Is Still Good

        Report Says FBI Snooping on Trump Campaign Aide Was Justified but Badly Mishandled

        So not only are a lot of the stories in defense of the snooping, but you don’t even get any real push back by Reason until 2019 once the IG report came back. They essentially supported it for 3 years.

        What was the point you were making Leo?

        The first even real pushback appears to be here:

        Why the FBI’s counterintelligence probe of President Trump should be investigated
        If no President is above the law, does that mean no President is above the FBI?

        STEWART BAKER | JANUARY 14, 2019

        1. So Leo is a straight up liar. Good to know.

          1. “Justifying Surveillance of Carter Page Would Have Been Pretty Easy”

            This one couldn’t even be confused as not being supportive by someone with a low IQ.

            1. I said most, not all.

              By the way, the headline you reference wasn’t necessarily a support of the surveillance, but really an argument as to why they could have actually just gone through the “correct” (albeit unconsitutional) process to obtain a warrant. It’s not an endorsement.

              1. Guess you should have taken 4 minutes.

              2. I said most, not all.

                Which is not true.

                1. Correct again Jesse! Man you are really racking up the wins today. I’m clearly not worthy of debating someone like you. Have a good day, I’ll take the loss and leave this here for all to see the error in my ways.

                  “I didn’t read them all, but most are from before January 2021″

                  Look at that! I DID say all!

                  Have a good day. Resume echo chamber mode.

            2. Not to mention if you read the actual article that you copied the title of, it’s actually taking the stance that it’s too easy to get a FISC to issue a warrant. From the article:

              How hard is it to show the sort of probable cause the FBI needs under FISA? Not very, judging by the bureau’s track record before FISC judges, who almost never reject its warrant applications. The FBI’s defenders argue that its success rate reflects careful preparation, which requires approval by senior Justice Department officials and often includes consulting with the court before filing. But in the end, Syracuse University law professor William Banks says, the government’s burden is not very demanding. “Carter Page was doing business in Russia, talking to Russian diplomats who may have been involved in intelligence activities in the United States,” Banks told the Times. “Game over. The standards are incredibly open-ended.”

              Hardly an endorsement of FISA

              1. What is really galling is the twit who changed an e-mail to cover up the fact that Page had been doing undercover work fo the CIA got a slap on the wrist and is, to this day, the only one in the government held (even barely) accountable. Hell of a way to treat a graduate of the Naval Academy. (I suppose I should not be surprised, look at how General Flynn has been treated through to today. All this because they hate Trump more than they love their country. “Checks and Balances? Those are for chumps.” sayeth the swamp’s denizens.

        2. Headlines in a simple search which indicate no support:

          “Everybody’s Talking About ‘The Memo’ and Ignoring the Surveillance Debate
          Partisan posturing drowns out important civil liberties concerns.” 1/30/18

          “If You Think The Nunes Memo Will ‘Discredit’ FBI and DOJ, You Haven’t Been Paying Attention For the Past 50 Years”
          2/2/18

          “Trump’s Critics Worry That He’s Undermining Trust in the FBI, As If That’s a Bad Thing
          More Republican skepticism of law enforcement agencies is a welcome development.”
          2/5/18

          “Trump Defenders Should Support the N.Y. Times Effort to Unseal Secret Surveillance Documents
          Why should we have to rely on Dem and GOP spin? Americans have every right to know what happened.”
          2/5/18

          “There’s Still No Big ‘There’ in the Russia Probe”
          2/6/18

          “Senate Memo on the Surveillance of Carter Page Suggests FBI Was Misled by Steele
          The Nunes memo says the FBI deceived the court. Grassley’s memo suggests the FBI was tricked itself.”
          2/7/18

          “The Steele Dossier’s Origin Story Gets Even More Suspect: Reason Roundup”
          8/29/18

          “Declassification of Carter Page Warrants May Be Politically Motivated, but More Transparency Is Still Good”
          9/17/18

          “Why the FBI’s counterintelligence probe of President Trump should be investigated
          If no President is above the law, does that mean no President is above the FBI?”
          1/14/19

          And the list probably goes on, but I tire of this exercise.

          Lies by omission are lies, Jesse.

          1. Half of what you cited is not calling out the FISA abuse. I didn’t omit them because they have no content pro/against it. For example:

            “There’s Still No Big ‘There’ in the Russia Probe”

            That has nothing to do with FISA abuse.

            Just take the L man.

            1. You’re right Jesse. I lost.

              I amend my earlier statement. This sure feels like the first time that Reason has written an article on this topic. It’s clear now that Reason wasn’t this forthright about it before–not even during Trump’s impeachment.

              1. “You’re right Jesse. I lost…”

                You lost a long time ago, TDS-addled asshole.

          2. And the list probably goes on, but I tire of this exercise.

            Because your list doesn’t say what you think it does. I already listed the ones where they somewhat justify the abuse or ignore it. You should try re-reading what I actually posted.

            You tired of it, because you were wrong.

            Lies by omission are lies, Jesse.
            And the list probably goes on, but I tire of this exercise.

            So you are lying based on your own statement. Good to know Leo.

            1. I read this whole argument and wow, what a waste of time that was. You BOTH turned this into an argument about whether or not Reason has written against mass surveillance sufficiently and about the whole issue of surveiling Trump and whether Reason supported that INSTEAD OF ACTUALLY TALKING ABOUT MASS SURVEILLANCE.

              Quit having the attention span of a damn squirrel and focus on the issues instead of attacking each other over nonsense. Who cares if Leo was wrong about this and who the hell cares about TDS at this point?
              WHO CARES WHAT TRUMP DID?? Trump is out of office–its IRRELEVANT. Know what’s not irrelevant??? The FISA court (which is not a court, a court is an adversarial judicial process in which both the accused and the accuser get legal representation and due process, the FISA “court” offers none of that) just gave the FBI a blank check to the FBI to spy on AMERICANS WITHOUT A WARRANT.
              This is a BLATANT violation of our–ALL OF OUR–4th amendment rights against unreasonable search and seizure. People have gone to prison based on convictions that were only possible with this illegally obtained surveillance data. They use this illegal surveillance to gather evidence and then when they have enough evidence to convict you they raid you and guess what? They know exactly what to look for to secure that conviction Because THEY ALREADY LOOKED BEFORE THEY HAD A WARRANT. It’s called a parallel construction and it’s one of the gravest, most severe violations of the US constitution possible. And you two dorks are arguing about Trump and some crumby magazine articles!?

              GET A GRIP!! AMERICA IS UNDER SIEGE AND WE ARE ALL LOSING OUR CIVIL LIBERTIES!!! When the people are divided over nonsense like the crap you two are arguing about NOBODY except the powerful and corrupt elites win.

  4. However Reason explains or the Judge proclaims we the people need to fear and dread that our rights have been wronged.

  5. Reason is shocked to find out the organization that bragged about abusing its power to spy on us citizens actually abused its power to spy on us citizens.
    Serious question, is it a conspiracy theory if you repeat what the people perpetrating the conspiracy say they are doing?

    1. Epstein didn’t kill himself.

      1. Well, maybe not directly – – – – – – – – – – – –

  6. five fucking years late. I hope Comey sends you a Whitman sampler

  7. And senile Joe wants it so bad, cause he voted for it.

  8. Abolish the FISA Court. A 40+ year exercise in liberty-killing futility.

    Nevermind defunding the local police; defund the fucking FBI.

    1. Seconded.

      There shouldn’t be enough federal crimes to require such a large federal police force in the first place. Cut funding for the FBI and the federal registry in half. Then half again. Then half again. That’s probably a good start.

    2. Take away their guns and warrants.
      Leave them to the “investigation” part alone.
      If they need an arrest, they can call on the local cops.

    3. Anyone, paying attention at the time, noticed that The Patriot Act, touted as a way to prevent future terrorist actions, never confined its increased surveillance permission to terroristic activity.
      It was written to allow these permissions to be applied to “ordinary” crimes, also.
      When legislation is passed in the aftermath of a nationally frightening event, too often cooler heads are unable to prevail.
      The same can be said about the 14th amendment.

  9. “…not about foreigners but about American citizens for investigations of “healthcare fraud, transnational organized crime, violent gangs, domestic terrorism involving racially motivated violent extremists, as well as investigations connected to public corruption and bribery.”

    Excuse me, but no sex trafficking? How can I take this seriously if they didn’t extend their reach to the greatest threat to humanity [well, as least as far as underage girls and neurotic suburban housewives go] in the 21st century?

    1. You have to learn bureaucrat-speak.
      Sex trafficking is a transphobic sexist term, so ‘transnational organized crime’ has to fill in.

      1. LOL! You mean they missed the “Hyphen” as in “Trans-National”?

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  11. In other news, water is wet.

    1. Reason is reviewing reports from a anonymous ‘highly placed official’ that the sun may rise in the east, possibly in the near future.

  12. Section 702 specifically focuses on unwarranted searches of foreign targets because they don’t have the protections of the Fourth Amendment and therefore their communications can be collected and reviewed.

    And the Fourth Amendment says…
    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    The right of the people, not Americans, or citizens. But if you’re a foreigner the Constitution doesn’t apply?

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