In our previous posts, we’ve argued that the NSA is collecting massive amounts of data about US citizens under conditions that have nothing to do with terrorism or national security, thanks to the authorities granted to the US government by section 702 of the Foreign Intelligence Surveillance Act. Now, in our final post, we’ll look at how that data is used for reasons that are far removed from those the intelligence community gives its overseers and the public when justifying this sweeping surveillance program.
Warrantlessly Acquired 702 information Can Be Searched and Used for Non-Foreign Intelligence Purposes
The government can, and regularly does, search through its massive databases of content and metadata gathered under section 702 for information about U.S. persons. Such searches are often referred to as the “backdoor search loophole,” because they enable the government to access information that would otherwise be unavailable without a warrant or similar probable cause finding. The NSA and the CIA minimization procedures now require analysts to create a “statement of facts showing that a query is reasonably likely to return foreign intelligence information” before searching section 702 data for U.S.-person information, but the procedures do not require that foreign intelligence be the purpose of conducting the search (see here and here for more). Moreover, this restriction does not pertain to the FBI, whose agents can query 702-acquired data for U.S.-person information as part of routine criminal investigations. The FBI can even search section 702 data for U.S.-person identifiers in order to initiate an investigation – without a suspicion of wrongdoing, never mind probable cause.
Even unauthorized FBI agents can conduct warrantless and suspicionless fishing expeditions through section 702 data for criminal conduct and thereby gain access to private information about Americans. According to the FBI’s minimization procedures, the FBI does not consider a search a “query” if the agent conducting the search does not immediately see responsive data containing U.S.-person information – either because they are not authorized to access section 702-acquired data or because no section 702-acquired data was responsive to their query. Unfortunately, the inability to see 702-acquired information immediately after a query does not prevent unauthorized agents from easily gaining access to it: upon notification that some results from their query contain section 702 information, the procedures allow unauthorized agents to simply ask an authorized person to give them access once that authorized person determines the information “reasonably” appears to be foreign intelligence or evidence of a crime. Worse, if it is unclear in the procedures to the authorized person whether or not the 702 information may contain foreign intelligence or evidence of a crime, the unauthorized agent can view the information and make that determination himself.
With such a huge repository of data, government agents have the capacity to learn whether individuals have engaged in particularly “sensitive” activities, which the FBI’s minimization procedures define as including, among other things, religious activities, political activities, activities involving the press or other media, sexual activities, and medical, psychiatric, or psychotherapeutic activities. If the sensitive information returned “reasonably appears” to be foreign intelligence information or evidence of a crime, that information may be retained, processed, and disseminated in the same manner as all other “non-sensitive” information.
The public has no idea how often the FBI conducts backdoor searches because the FBI will not report this data. However, the latest Statistical Transparency Report from the Office of the Director of National Intelligence shows that the backdoor search loophole is being used by the NSA and the CIA more than ever before: last year, there were 4,672 acknowledged backdoor search terms concerning a “known” U.S.-person – a 223% increase since 2013, according to the Privacy and Civil Liberties Oversight Board’s report on Section 702 surveillance programs.
In 2015, largely in response to the PCLOB’s criticisms of the section 702 programs, the Office of the Director of National Intelligence announced that it would limit the introduction of section 702 information as evidence against U.S. persons to the prosecution of “serious” crimes. However, this policy was not officially adopted into the FBI’s 2015 minimization procedures, which means that the policy may change at any time and without the Attorney General’s approval or FISC oversight. In addition, ODNI General Counsel Robert Litt’s explanation of what constitutes a “serious” crime indicates that the government may interpret this term broadly. Along with a few somewhat more specific serious crimes such as human trafficking and “incapacitation or destruction of critical infrastructure,” ODNI defines “serious crimes” to include cases “related to national security” and “transnational crimes.” Moreover, even if section 702 information cannot be used as evidence in court against a U.S. person for certain crimes, law enforcement can still use the information to find other evidence that can be used in court. In 2013, Reuters revealed that the U.S. Drug Enforcement Administration has engaged in a technique known as “parallel construction,” in which they used intelligence-gathered data to launch criminal investigations. Once they found enough information, they used traditional investigatory tools and legal processes to create a new discovery trail for the data, thereby obscuring the fact that foreign intelligence surveillance was the true source of the evidence.
Thus, section 702 surveillance can be abused in ways that create an end-run around the Fourth Amendment. The vast scope of collection under Section 702 means that troves of sensitive information belonging to or concerning U.S. persons is warrantlessly gathered without any connection to crime or national security threats. This information is subsequently available to a wide variety of government actors for a variety of purposes, including suspicionless searches meant to ferret out criminal activity.
Conclusion: The Overbroad Scope of Section 702’s Warrantless Collection Endangers Privacy and Civil Liberties Without Necessarily Contributing to National Security
Once the scope of section 702 collection is truly understood, it is clear that communications gathered under its authority do not only belong to the terrorists hiding in caves who wish to do us harm. As the statute and the guidelines that go with it are written, section 702-acquired data could belong to scientists, protestors, advocates, journalists, diplomats, students, and other everyday civilians. Given the broad scope of section 702 collection, coupled with the fact that collected data may be kept for several years and searched without probable cause or even factual predicate, the surveillance statute comes with grave privacy and civil liberties concerns. Lawmakers considering the reauthorization of section 702 must understand that such privacy and civil liberties concerns are not merely a necessary by-product of national security efforts. Rather, they are an unnecessary symptom of a statute that has metastasized well beyond its purported goal. This must be resolved before section 702 surveillance is allowed to continue past its expiration date.