Reason Roundup

The FBI Secretly Searched Americans' Digital Communications 3.4 Million Times Last Year

Plus: A questionable algorithm can sic state social workers on families, governments aren't the only entities that can expand contraceptive access, and more...

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The feds still use warrantless surveillance to invade the privacy of millions of Americans. A new transparency report from the Office of the Director of National Intelligence (ODNI) shows that from December 1, 2020, to November 30, 2021, the FBI used its Foreign Intelligence Surveillance Act (FISA) powers to search the communications of up to 3,394,053 Americans without a warrant.

Under FISA, this type of snooping is technically legal. But there is a strong argument that it is unconstitutional, violating Americans' 4th Amendment rights.

"Today's report sheds light on the extent of these unconstitutional 'backdoor searches,' and underscores the urgency of the problem," said Ashley Gorski, a senior staff attorney with the American Civil Liberties Union, in a statement.

The ODNI report's main thrust is about the use of FISA powers, which allow various forms of federal spying. For the first time, "includes the number of queries using U.S. person identifiers run by FBI" against information acquired under Section 702 of FISA Title VII.

Section 702 collection targets non-U.S. persons outside the U.S. and does not require a probable cause court order. (Authorities must instead seek permission from the Foreign Intelligence Surveillance Court, which basically greenlights all such requests.)

A total of 232,432 people were Section 702 targets in 2021.

"Under the law, targets need not be suspected of wrongdoing; they can include journalists, academics, lawyers, and human rights workers abroad," Gorski points out. "The U.S. government sweeps up its targets' emails, text messages, and other communications, including their communications with Americans—all without a warrant."

Within this data, federal authorities—including the National Security Agency, the CIA, and the FBI—may snoop on Americans, too. And the FBI has the broadest authority to do so.

Whereas other agencies can only search Section 702-acquired data for foreign intelligence information, the ODNI report notes that the "FBI is authorized to conduct queries that are both reasonably likely to return foreign intelligence information and…queries that are reasonably likely to return evidence of a crime":

While FBI receives Section 702 collection for only a small percentage of the total Section 702 targets (approximately 4.4% in March 2022), the frequency with which FBI uses U.S. person query terms is greater than other agencies.

The difference in frequency is largely attributable to FBI's domestic-focused mission versus the other agencies' foreign-focused missions. FBI queries are often initiated through tips and leads relating to domestic matters, provided by the public and domestic partners, meaning they are more likely to involve U.S. persons.

If there were 232,432 Section 702 targets, how did we get from there to as many as 3,394,053 people's communications being searched? Because it isn't just the immediate targets who get swept up in these spying expeditions. The second number represents "the number of U.S. person queries of contents and noncontents that the FBI conducts to retrieve foreign intelligence information and/or evidence of a crime from unminimized Section 702-acquired collection," the ODNI report explains.

Unminimized information is "information for which a determination has not been made as to whether it contains foreign intelligence information." This means identifiable data about individual Americans has not been excised or redacted.

The reason we can only say "up to 3,394,053" people and not the exact total is because the number of U.S.-person queries don't correspond directly to the number of the people. (To quote the report: "A single U.S. person might be associated with 10 unique query terms including name, social security number, passport number, phone number, multiple email addresses, etc. These 10 identifiers could be run 10 different times throughout the reporting period, resulting in 100 queries associated with a single individual.") In addition, a "U.S. person" could mean a specific citizen or lawful permanent resident or it could mean a U.S.-based corporation.

"Though the FBI's arithmetic is fuzzy, it's clear that the scale of the problem is enormous," Gorski commented on Twitter.

"For anyone outside the U.S. government, the astronomical number of FBI searches of Americans' communications is either highly alarming or entirely meaningless," declared Sen. Ron Wyden (D–Ore.) in a statement. "Somewhere in all that over-counting are real numbers of FBI searches, for content and for noncontent—numbers that Congress and the American people need before Section 702 is reauthorized."

"The FBI must also be transparent about the particular circumstances in which it conducted a staggering 1.9 million additional queries in 2021," Wyden added. "Finally, the public deserves to know whether the FBI has fully addressed the extensive abuses of its 702 search authorities that have been documented for years. Baseline transparency is essential if the federal government wants to hold such sweeping surveillance powers."

"The report doesn't say the [FBI] activity was illegal or even wrong. But the revelation could renew congressional and public debates over the power U.S. agencies have to collect and review intelligence information, especially data concerning individuals," comments Inkl. "In comparison, fewer than 1.3 million queries involving Americans' data were conducted between December 2019 and November 2020."

Here is how the ODNI report explained the spike in numbers:

In the first half of the year, there were a number of large batch queries related to attempts to compromise U.S. critical infrastructure by foreign cyber actors. These queries, which included approximately 1.9 million query terms related to potential victims—including U.S. persons—accounted for the vast majority of the increase in U.S. person queries conducted by FBI over the prior year.

You can find much more information on FISA-pursuant surveillance and searches here.

FREE MINDS

A questionable algorithm can sic state social workers on families. An algorithm used by social workers to decide which families should be investigated for child neglect is raising concerns, report Sally Ho and Garance Burke of the Associated Press. "From Los Angeles to Colorado and throughout Oregon, as child welfare agencies use or consider tools similar to the one in Allegheny County, Pennsylvania, an Associated Press review has identified a number of concerns about the technology, including questions about its reliability and its potential to harden racial disparities in the child welfare system," they write.

Related issues have already torpedoed some jurisdictions' plans to use predictive models, such as the tool notably dropped by the state of Illinois.

According to new research from a Carnegie Mellon University team obtained exclusively by AP, Allegheny's algorithm in its first years of operation showed a pattern of flagging a disproportionate number of Black children for a "mandatory" neglect investigation, when compared with white children. The independent researchers, who received data from the county, also found that social workers disagreed with the risk scores the algorithm produced about one-third of the time.

FREE MARKETS

Governments aren't the only entities that can expand access to contraception and abortion. A new paper from by Elizabeth Smith, Christopher Purdy, and Liam Blunt of DKT International looks at the private sector's potential to deliver contraception and abortion services in low- and middle-income countries. "Many country commitments supporting FP2020, a global movement focused on increasing access to contraceptives, extol the role of government intervention," write the researchers. The academic literature and reproductive-access research groups also tend to focus on government-provided medicine and care. But "this public sector orientation within the reproductive health community disproportionately diminishes the important role of the private sector in meeting the reproductive health needs of couples around the world, particularly in the area of safe abortion":

A growing body of evidence suggests the private sector is a significant (and in some countries, the primary) channel for contraceptive access. This is even more likely to be true for safe abortion products and technology, or during times of health crises (like the COVID-19 pandemic) when national governments are understandably investing their resources to respond to complex emergencies. In addition, the private sector is often overlooked for the critical responsibility it shoulders in delivering products to the public sector and ensuring their uptake. Failing to fully acknowledge the power of the private sector further downplays women's autonomy in contraceptive choice and obscures the social stigma mitigated by the anonymity afforded by private sector channels which play a critical role in supporting women and men's access to contraception and safe abortion products, services, and technology. It is a key channel for product and service delivery for consumers, as well as the main source of such products to the public sector.

QUICK HITS

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• After the war: "In the aftermath of Russia's invasion of Ukraine, it's time for Europe to step up and America to step back," writes Reason's Matt Welch.

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Elizabeth Nolan Brown is a senior editor at Reason.