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The Intelligence Community's latest transparency report [PDF] contains even more evidence of the FBI's inability to follow the law when helping itself to the NSA's collections. The infamous "backdoor searches" of the NSA's Section 702 collections -- which sweep up millions of electronic communications every year -- have always been a problem for the FBI. (But it's a problem the FBI likely doesn't mind having.)

Communications and data related to US persons are supposed to be minimized before being accessed by the FBI. The FBI may have permission to access this collection, but the impossible-to-stop "incidental" collection of US persons' communications means the FBI is supposed to use warrants when searching the data using US person queries. This mandate only applies to certain cases: criminal investigations not related to national security. The built-in minimization procedures are supposed to take care of the rest of the agency's backdoor searches, supposedly ensuring the FBI can't use a foreign-facing communications collection to spy on Americans.

In practice, this almost never works. It certainly didn't work in every case listed in the ODNI's latest report. Elizabeth Goitein, writing for Just Security, says the report contains more depressing admissions from the FBI. Every time the FBI has accessed US persons communications in cases where it's required to get a warrant, it hasn't bothered to get a warrant.

As minimal as this requirement is, the 2019 statistical transparency report reveals that the FBI has failed to comply with it in literally every relevant case. According to a table in the report, there were six instances in 2018 in which the FBI reviewed the contents of Americans communications after conducting a backdoor search in a criminal, non-national security case.

[...]

The same table indicates that the FBI obtained a warrant to review the contents of those communications exactly zero times. Similarly, for 2019, the table lists one instance in which the FBI ran a backdoor search in a criminal, non-national security case and reviewed communications content, but zero instances in which it obtained a warrant.

There's another caveat that could have salvaged these warrantless backdoor searches, making them compliant with the law. But, nope. This one doesn't work either.

[T]he requirement to obtain a warrant applies only when the investigation has reached a particular stage (namely, when it is designated as a predicated investigation). A footnote in the ODNI report, however, states that the Department of Justice reported each instance to the Foreign Intelligence Surveillance Court as a compliance incident. That means the warrant requirement appliedand was violatedin each case.

The news that the FBI violated the warrant requirement in every backdoor search fitting these parameters should have been front page news for the Office of the Director of National Intelligence. But the ODNI apparently doesn't want this sort of information to be easily discernible in its ironically-named "Transparency Report." As Goitein points out, this news was buried in a footnote and inferred from a table on page 17. No public statement has been made by the ODNI or the FBI about its inability to secure warrants when warrants in the few instances are required.

Some may shrug this off as being of limited importance because there were only six violations. But that number only covers a single month in 2018 and those were only discovered because the DOJ decided to engage in some oversight for a change.

It's not like it's tough to adhere to the minimal demands Congress has made of the FBI when searching 702 collections. But apparently the FBI isn't up to it.

[T]here is nothing complicated about the requirement Congress imposed; it should have been an easy matter to educate FBI agents about their new obligation. There is no imaginable excuse for a compliance rate of zero percent.

The requirement has been on the books since the beginning of 2018. The FBI still couldn't find a way to comply with the warrant mandate several months later. This isn't acceptable, not when the agency is using a foreign-facing collection that's subject to almost zero oversight to search for communications incidentally swept up by the NSA's dragnet. It has continually abused this privilege to search unminimized communications and engage in domestic surveillance while pretending to be only interested in foreign terrorists. The FBI is a serial domestic abuser. For too many years, Congress and the FISA Court have been its enabler.

Filed Under: 4th amendment, backdoor searches, constitution, fbi, nsa, surveillance, warrants

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National Intelligence Report Shows The FBI Never Gets Warrants For Its Backdoor Searches Of NSA Collections - Techdirt