FBI Violated Surveillance Program Rules After George Floyd Protests and Jan. Attack
FBI analysts improperly used a warrantless surveillance program to search for information about hundreds of Americans who came under scrutiny in connection with two politically charged episodes of civil unrest: the protests after the 2020 police killing of George Floyd and the Jan. 6, 2021, attack on the Capitol, a newly declassified court ruling shows.
While the FBI has tightened restrictions since then, the disclosure of the misuses is likely to provide fodder to critics of the program from both ends of the political spectrum as the Biden administration seeks to persuade Congress to renew it.
The surveillance program, known as Section 702, empowers the government to collect, without a warrant and from American companies like Google and AT&T, the communications of foreigners abroad who are targeted for intelligence purposes — even when they are talking with or about Americans.
Intelligence and law enforcement officials are permitted to search the database of intercepted communications under Section 702 using the names or other identifiers of Americans, but only under certain circumstances. The FBI has repeatedly failed to comply with those limits, leading to court scrutiny.
In the newly declassified ruling, the presiding judge of the Foreign Intelligence Surveillance Court, Rudolph Contreras, permitted the program in April 2022 to operate for another year based on changes the FBI made to improve compliance.
Judge Contreras wrote that he was encouraged by the efforts to improve the FBI’s practices and that preliminary indications suggested the measures were “having the desired effect.” Still, he cautioned that he could impose greater restrictions.
“Nonetheless, compliance problems with the FBI’s querying of Section 702 information have proven to be persistent and widespread,” he wrote. “If they are not substantially mitigated by these recent measures, it may become necessary to consider other responses, such as substantially limiting the number of FBI personnel with access” to the raw repository of intercepted information.
The ruling, which was redacted in places, also described some of the incidents in 2020 and 2021 that preceded the changes. In those incidents, officials were deemed to have failed to comply with the standard for searching the Section 702 repository using Americans’ identifiers: when there is a specific reason to believe that information about foreign intelligence or a crime involving that American would be in a repository of messages collected from foreigners abroad.
In June 2020, it said, an official searched the repository using a batch of 133 identifiers of people arrested “in connection with civil unrest and protests between approximately May 30 and June 18, 2020,” to determine whether there was any counterterrorism-related information. in the repository about them.
That period corresponds to the nationwide Black Lives Matter protests after the killing of Mr. Floyd in Minneapolis, some of which descended into riots. The FBI initially defended the queries as compliant with the rules, but the Justice Department’s national security division apparently disagreed.
The ruling also details several incidents in which FBI officials ran queries of people suspected of involvement in the Jan. 6 riots at the Capitol. One line discussed “three batch queries consisting of approximately 23,132 separate queries” presumed to be Americans; the passage was redacted, then picked up with “was being used by a group involved in the Jan. 6 Capitol breach.
Other incidents included separate query batches of 13 and 5 Jan. 6 suspects; “two queries for a person under investigation for assaulting a federal officer in connection with the Capitol breach”; and a partially redacted discussion of 360 queries in connection with various “domestic drug and gang investigations, domestic terrorism investigations and the Capitol breach.”
In a background briefing with reporters before the release of the opinion, a senior FBI official said that in those cases, the analysts had a mistaken understanding of the standard. They were required to undergo additional training, the official said.