FBI analysts mistakenly used a warrantless surveillance program to seek information on hundreds of Americans under scrutiny in connection with two politically charged episodes of civil unrest: the protests following the 2020 police killing of George Floyd and the 6 January 2021 at the Capitol, according to a recently released court ruling.
While the FBI has since tightened restrictions, the revelation of the abuse will likely feed critics of the program at both ends of the political spectrum as the Biden administration tries to convince Congress to extend it.
Known as Section 702, the surveillance program allows the government to collect, without a warrant and from U.S. companies like Google and AT&T, the communications of foreigners abroad who are being targeted for intelligence purposes — even if they’re talking to or about Americans.
Intelligence and law enforcement officials may search the database of intercepted communications under section 702 using the names or other identifying information of Americans, but only under certain circumstances. The FBI repeatedly failed to meet those limits, leading to judicial scrutiny.
In the recently released ruling, Foreign Intelligence Surveillance Court President Rudolph Contreras allowed the program to operate for one more year in April 2022 based on changes the FBI made to improve compliance.
Judge Contreras wrote that he was encouraged by efforts to improve FBI practices and that preliminary indications suggested that the measures “had the desired effect.” Still, he warned that he could impose greater restrictions.
“Nevertheless, compliance issues with the FBI’s search of Section 702 information have proven persistent and widespread,” he wrote. “If not substantially mitigated by these recent measures, it may become necessary to consider other responses, such as substantially limiting the number of FBI personnel who have access” to the raw repository of intercepted information.
The ruling, which has been redacted in places, also details some of the 2020 and 2021 incidents that preceded the changes. In those incidents, officials were deemed to have failed to meet the standard for searching the Section 702 repository using U.S. identification data: when there is a specific reason to believe that foreign intelligence information or a crime involving that U.S. is, would be in a repository of messages collected from foreigners abroad.
In June 2020, it said, an official searched the repository using a set of 133 identifications of people arrested “in connection with civil unrest and protests between approximately May 30 and June 18, 2020,” to determine if any information about counter-terrorism. in the repository about them.
That period corresponds to the nationwide Black Lives Matter protests following the murder of Mr. Floyd in Minneapolis, some of which turned into riots. The FBI initially defended the questions as being in line with the rules, but the Justice Department’s national security division apparently disagreed.
The ruling also details several incidents in which FBI officials questioned people suspected of involvement in the Jan. 6 riot at the Capitol. One line discussed “three batch queries consisting of approximately 23,132 separate queries”, presumably Americans; the passage was redacted and then picked up as “was used by a group involved in the breakthrough of the Capitol on January 6.”
Other incidents included separate interrogation batches of January 13 and five suspects; “two questions for a person under investigation for assaulting a federal officer in connection with the Capitol breach”; and a partially redacted discussion of 360 questions related to various “domestic drug and gang investigations, domestic terrorism investigations, and the U.S. Capitol intrusion.”
In a background briefing with reporters ahead of the advisory’s release, a senior FBI official said the analysts had a misunderstanding of the standard in those cases. They had to undergo additional training, the official said.