New FISA Court Opinion

The Federalist

New FISA Court Opinion Reveals 

More Illegal FBI Spying On Americans

Near-absolute power has corrupted the U.S. intelligence community so it now threatens our freedoms and ability to hold elections without interference from leaking and spying bureaucrats.

Adam Mill

The Foreign Intelligence Surveillance Court (FISC) just released another bombshell opinion detailing how our FBI consistently abuses the awesome and powerful surveillance we entrust to it for legitimate law enforcement purposes.

The court outlined how the FBI repeatedly violated restrictions intended to protect Americans’ privacy by spying on Americans without having legitimate law enforcement or counter-intelligence purposes. Further, the FBI failed to keep adequate records, as required by law, to allow the court to review and hold the FBI accountable for these abuses.

Imagine a giant database of virtually everything that goes over the internet. If you access the private data of an American, you discover her darkest secrets. Search history will reveal an apparently happily married woman is actually searching for reviews of divorce attorneys; a priest who views the Sports Illustrated swimsuit edition; a teenager sends a picture of herself to a boyfriend; searches for symptoms of sexually transmitted diseases; purchase of sex toys; drug use; pornography; medical history; or doubts about a long-term relationship.

Such secrets hold power over average citizens. The FBI routinely looks for secrets to pressure a potential witness into becoming an informant. But the vast power that comes with access to this information also corrupts.

Under J. Edgar Hoover, the FBI used its spying to intimidate Congress and even presidents. In our day, Sen. Chuck Schumer accidentally said out loud what everyone knows to be true, “You take on the intelligence community, they have six ways from Sunday at getting back at you.” Indeed, China’s chief weapon of oppressing its people isn’t guns or prisons, it’s access to citizens’ private information. Authoritarian leader Vladimir Putin rose to power from the Russian intelligence community.

But in America, we have a Constitution and court supervision of surveillance. So long as the FBI complies with court-approved procedures, we can feel safe that intelligence agencies (including the FBI) will not abuse the awesome power that comes with this database.

They have courts in Venezuela and communist China too. They have laws on the books promising freedom and liberty. But when the courts and the legislature don’t stop the administrative state from spying on its own people, those protections mean nothing.

We’re now finding that the awesome surveillance power wielded by our FBI has been turned against Americans for unknown purposes. The FBI not only abused its power, it failed to comply with record-keeping requirements that would have allowed the courts to hold the offending agents accountable. Here are four things the FISA court found the FBI did in secret.

1. The FBI Hid Illegal Surveillance by Failing to Keep Records

The opinion notes that, when the FBI searched the secret, raw database, it failed to keep a log of this surveillance, making this spying unaccountable to constitutional review. The FISC wrote, “the Court finds that the FBI’s querying procedures do not comply with the requirement at Section 702(t)(l )(B) to keep records of U .S.-person query terms used to conduct queries of information acquired under Section 702.”

When the FBI turned up Americans in these searches, it is supposed to minimize details resulting from a warrantless search. The court further found that the procedures the FBI routinely followed violated the Fourth Amendment. In other words, this is not always a question of rogue agents fishing through Americans’ private data. The procedures themselves allowed FBI agents to violate Americans’ constitutional rights.

2. The FBI Violated Guidance from Its Own Office of General Counsel

As noted by the opinion, “Since April 2017, the government has reported a large number of FBI queries that were not reasonably likely to return foreign-intelligence intonation or evidence of crime. In a number of cases, a single improper decision or assessment resulted in the use of query terms corresponding to a large number of individuals, including U.S. persons.”

The time period of “April 2017” is important because it was April 2017 when the FISC issued this scathing opinion condemning past violations that the government promised to stop. It noted, for example, an element within the FBI (name redacted) “conducted queries using identifiers for over 70,000 communication facilities” and “proceeded with those queries notwithstanding advice from the FBI Office of General Counsel (OGC) that they should not be conducted without approval by the OGC and the National Security Division (NSD) of the Department of Justice.”

3. FBI Employees Electronically Spy on Americans for Improper Reasons

As noted above, much of the spying was done in a way that was “not reasonably likely to return foreign-intelligence intonation or evidence of crime.” Why is the FBI sifting through Americans’ private information if not to look for evidence of a crime or foreign-intelligence information?

On December 1, 2017, an element of the FBI (name redacted) “also conducted over 6,800 queries using the Social Security Numbers of individuals.” In some cases, FBI personnel ran queries for improper personal reasons, including searches on family members. The court excused this, noting, “It would be difficult to completely prevent personnel from querying data for personal reasons.”

4. Inadequate Records Prevent Accountability

The government speculated that many of the illegal searches of the private data of Americans happened “mistakenly” and that the FBI personnel “genuinely thought they had a sufficient basis for the queries.” But, as noted by the court, the government did nothing to corroborate this theory: “The Court has not heard from the personnel who conducted those non-compliant queries and is not well positioned to assess what courses of action they would have taken if they had been obligated to state in writing why they thought the queries were justified.”

In other words, the reasons for the spying were supposed to be logged so they could be later assessed. But without such records, the agents cannot be held to account.

The whole purpose of intelligence agencies is to protect our constitutional republic from foreign threat. Unfortunately, near-absolute power and secrecy have corrupted the intelligence community to the point that it now threatens our freedoms and ability to hold elections without interference from leaking and spying bureaucrats. When there’s a Hoover-style blackmail file on every candidate, judge, and person of influence, then elections stop mattering.

Adam Mill is a pen name. He works in Kansas City, Missouri as an attorney specializing in labor and employment and public administration law. Adam has contributed to The Federalist, American Greatness, and The Daily Caller.