The FBI has illegally shared raw intelligence about Americans with unauthorized third parties and violated other constitutional privacy protections, according to newly declassified government documents that undercut the bureau’s public assurances about how carefully it handles warrantless spy data to avoid abuses or leaks.
In his final congressional testimony before he was fired by President Trump this month, then-FBI Director James Comey unequivocally told lawmakers his agency used sensitive espionage data gathered about Americans without a warrant only when it was “lawfully collected, carefully overseen and checked.”
Once-top secret U.S. intelligence community memos reviewed by Circa tell a different story, citing instances of “disregard” for rules, inadequate training and “deficient” oversight and even one case of deliberately sharing spy data with a forbidden party.
For instance, a ruling declassified this month by the Foreign Intelligence Surveillance Court (FISA) chronicles nearly 10 pages listing hundreds of violations of the FBI’s privacy-protecting minimization rules that occurred on Comey’s watch.
The behavior the FBI admitted to a FISA judge just last month ranged from illegally sharing raw intelligence with unauthorized third parties to accessing intercepted attorney-client privileged communications without proper oversight the bureau promised was in place years ago.
The court also opined aloud that it fears the violations are more extensive than already disclosed.
“The Court is nonetheless concerned about the FBI’s apparent disregard of minimization rules and whether the FBI is engaging in similar disclosures of raw Section 702 information that have not been reported,” the April 2017 ruling declared.
The court isn’t the only oversight body to disclose recent concerns that the FBI’s voluntary system for policing its behavior and self-disclosing mistakes hasn’t been working.
The Justice Department inspector general’s officedeclassified a report in 2015 that reveals the internal watchdog had concerns as early as 2012 that the FBI was submitting ‘deficient” reports indicating it had a clean record complying with spy data gathered on Americans without a warrant.
The FBI normally is forbidden from surveilling an American without a warrant. But Section 702 of the Foreign Surveillance Act, last updated by Congress in 2008, allowed the NSA to share with the FBI spy data collected without a warrant that includes the communications of Americans with “foreign targets.”
But the FISA court watchdogs suggest FBI compliance problems began months after Section 702 was implemented.
The FBI’s very first compliance report in 2009 declared it had not found any instances in which agents accessed NSA intercepts supposedly gathered overseas about an American who in fact was on U.S. soil.
“We found several instances in which the FBI acquired communications on the same day that the NSA determined through analysis of intercepted communications that the person was in the United States,” the declassified report revealed.
It called the FBI’s first oversight report “deficient” and urged better oversight.
FBI officials acknowledged there have been violations but insist they are a small percentage of the total counterterrorism and counterintelligence work its agents perform.
Almost all are unintentional human errors by good-intentioned agents and analysts under enormous pressure to stop the next major terror attack, the officials said.
Others fear these blunders call into the question the bureau’s rosy assessment that it can still police itself when it comes to protecting Americans’ privacy 17 years after the war on terror began.
That doubt, heaviest among civil libertarian Democrats but also growing among Republicans, is particularly sensitive because the law that allows the bureau to access warrantless spy data about Americans - Section 702 of the Foreign Intelligence Surveillance Act - is up for renewal later this year.
“No one on the Hill wants to look like we are soft on terrorism when you have increasing threats like Manchester-style attacks. But the evidence of abuse or sloppiness and the unending leaks of sensitive intelligence in the last year has emboldened enough of us to pursue some reforms,” a senior congressional aide told Circa, speaking only on condition of anonymity because he wasn’t authorized to talk to the media. “Where that new line between privacy and security is drawn will depend on how many more shoes fall before the 702 renewal happens.”
Rep. Trent Frank, R-Ariz., a member of the House Judiciary Committee that will help craft the 702 renewal legislation, said the rising revelation of problems about improper spying on Americans are having an effect on lawmakers who have long supported the intelligence community.
“The bottom line is the law has to be followed and when it isn’t there has to be consequence that is of significance so that it deters others from breaking the same law,” he told Circa.
One of the biggest concerns involves so-called backdoor searches in which the FBI can mine NSA intercept data for information that may have been incidentally collected about an American. No warrant or court approval is required, and the FBI insists these searches are one of the most essential tools in combating terrorist plots.
But a respected former Justice Department national security prosecutor questions if the searching has gotten too cavalier. AmyJeffress, the former top security adviser to former Attorney General Eric Holder, was appointed by the intelligence court in 2015 to give anindependent assessmentof the FBI’s record of compliance.
Jeffress concluded agents’ searches of NSA data now extend far beyond national security issues and thus were “overstepping” the constitutional protections designed to ensure the bureau isn’t violating Americans’ 4th Amendment protections against unlawful search and seizure.
“The FBI procedures allow for really virtually unrestricted querying of the Section 702 data in a way the NSA and CIA have restrained it through their procedures,” she argued before the court in a sealed 2015 proceeding.
“I think that in this case the procedures could be tighter and more restrictive, and should be in order to comply with the Fourth Amendment,” she added.
The court thanked Jeffress for her thoughtful analysis but ultimately rejected her recommendation to impose on the FBI a requirement of creating a written justification why each search would help pursue a national security or criminal matter.
The Justice Department argued in that matter that the extra restriction would keep FBI agents from connecting the dots in terror cases and compared NSA searches to something Americans do every day.
“If we require our agents to write a full justification every time think about if you wrote a full justification every time you used Google. Among other things, you would use Google a lot less,” a lawyer told the court.
That was late in 2015. But by early 2017, the court became more concerned after the Obama administration disclosed significant violations of privacy protections at two separate intelligence agencies involved in the Section 702 program.
The most serious involved the NSA searching for American data it was forbidden to search. But the FBI also was forced to admit its agents and analysts shared espionage data with prohibited third parties, ranging from a federal contractor to a private entity that did not have the legal right to see the intelligence.
Such third-party sharing is a huge political concern now as Congress and intelligence community leaders try to stop the flow of classified information to parties that could illegally disclose or misuse it, such as the recent leak that disclosed intercepted communications between the Russian ambassador and Trump’s first national security adviser, Michael Flynn.
The court’s memo suggested the FBI’s sharing of raw intelligence to third parties, at the time, had good law enforcement intentions but bad judgment and inadequate training.
“Nonetheless, the above described practices violated the governing minimization procedures,” the court chided.
A footnote in the ruling stated one instance of improper sharing was likely intentional.
“Improper access” to NSA spy data for FBI contractors “seems to have been the result of deliberate decision-making,” the court noted.
The recently unsealed ruling also revealed the FBI is investigating more cases of possible improper sharing with private parties that recently have come to light.
The government “is investigating whether there have been similar cases in which the FBI improperly afforded non-FBI personnel access to raw FISA-acquired information on FBI systems,” the court warned.
The ruling cited other FBI failures in handling Section 702 intel, including retaining data on computer storage systems “in violation of applicable minimization requirements.”
Among the most serious additional concerns was the FBI’s failure for more than two years to establish review teams to ensure intercepts between targets and their lawyers aren’t violating the attorney-client privilege.
“Failures of the FBI to comply with this ‘review team’ requirement for particular targets have been focus of the FISC’s (FISA’s?) concerns since 2014,” the court noted.
The FBI said it is trying to resolve the deficiencies with aggressive training of agents.
That admission of inadequate training directly undercut Comey’s testimony earlier this month when questioned by Sen. Dianne Feinstein, D-Calif.
“Nobody gets to see FISA information of any kind unless they've had the appropriate training and have the appropriate oversight,” the soon-to-be-fired FBI director assured lawmakers.
The struggle for the intelligence court and lawmakers in providing future oversight will be where to set more limits without hampering counterterrorism effort
The FBI told Circa in a statement, "As indicated in its opinion, the Court determined that the past and current standard minimization procedures are consistent with the Fourth Amendment and met the statutory definition of those procedures under Section 702."
Jeffress, however, warned in her 2015 brief of another dynamic that will pose a challenge too, an FBI culture to use a tool more just because it can.
“These scenarios suggest a potentially very large and broad scope of incidental collection of communications between a lawful target and U.S. persons that are not the type of communications Section 702 was designed to collect,” she told the court in a written memo.
And when questioned at a subsequent hearing, Jeffress observed: “I don’t think that the FBI will voluntarily set limits on its querying procedures, because law enforcement agencies tend not to take steps to restrict or limit what they can do, for obvious reasons.”
Circa congressional correspondent Kellan Howell contributed to this story.