This past Monday, the Foreign Intelligence Surveillance Court published its 2020 Report on DOJ’s annual request for reauthorization and certification regarding the collection and use of intelligence information gathered under the Foreign Intelligence Surveillance Act.

That Act authorizes warrantless searches by the FBI of intelligence databases created and maintained by the National Security Agency (NSA). Such searches under Sec. 702 are authorized when the targeted individuals are non-US persons outside the United States — such communications do not fall under the protection of the Fourth Amendment.

So, as a general matter, the existence of Sec. 702 searches and their utility to FBI agents conducting investigations into national security threats posed by individuals outside the United States is not a subject of any real controversy.

Further, the statute anticipates that communications involving persons inside the United States will be incidentally included in Sec. 702 search results because the “targeted” individual outside the United States may have had contacts with people inside the United States who were captured and revealed by the Sec. 702 data collection.  The FISA statute covers how such communications should be handled when they appear in a valid Section 702 search result.

But the controversy over the Report issued by the FISC on Monday has to do with the FBI’s reporting of Sec. 702 searches that had nothing to do with national security matters, and in some cases were specifically targeted at persons inside the United States — the two foundations upon which authorized searches under Sec. 702 are supposed to be premised.

Part of the recertification process each year involves a review by the FISC of self-reported violations by the FBI and other agencies of the various standards and requirements for accessing the NSA databases under Section 702.  The DOJ National Security Division reported to the FISC several instances of improper Sec. 702 searches conducted by various FBI personnel.  Here are paraphrased examples taken from the Report beginning at page 39.

Between April 11 and July 8, 2019, a “technical information specialist” in an unidentified field office ran 124 “queries” to access Sec. 702 database information using names and other identify information about individuals who had applied to attend the FBI’s “Citizen Academy” at Quantico; individuals who needed access to the FBI facility in that location to perform maintenance; and individuals who had entered the FBI facility to provide a tip or report a crime.

Between August 1 and October 18, 2019, a Task Force Officer ran 69 queries of Sec. 702 database information using names and other identifying information, with most of the explanation concerning his purpose redacted, other than the final sentence stating he wanted to know if the FBI could provide additional information about those persons.

On an unspecified date, an FBI intelligence analyst ran 110 queries to gather information for an analytical paper the analyst was working on.

Another analyst was reported as having conducted an unspecified number of queries as part of ongoing efforts at vetting “confidential human sources.”

These are all examples of likely gross negligence and poor training with respect to individuals who lacked the understanding or appreciation of the restrictions placed on access to NSA databases under Sec. 702.  It reveals the unreasonable judgment made by the FBI in terms of the extent it allows unsupervised access to the Sec.702 search process to individuals working for or with the FBI who have no reason to conduct such searches.  How does a “Task Force Officer” sit down at a classified FBI computer terminal and run searches of Sec. 702 information without needing to get authorization from a senior FBI official to do so?  The FBI needs to take immediate corrective steps to limit the number of authorized personnel who can conduct these types of searches.

But the report also goes on to address improper use of Sec. 702 searches of a more troublesome nature — in connection with predicated criminal investigations that are unrelated to national security matters.

Sec. 702 also anticipates that results from proper Sec.702 search queries may return information about individuals inside or outside the United States who are currently the subject of predicated criminal investigations.  The implementing statute, 50 U.S.C. Sec. 1881a, sets forth a procedure in subparagraph (f)(2) by which DOJ and the FBI must apply for a separate FISC order before search results that relate to a predicated criminal matter can be opened and examined by the investigating agents. That Order can be obtained via a process that is designed to be nearly identical to the ordinary process for obtaining a criminal search warrant. A federal agent must draft an affidavit that establishes probable cause to believe that specific persons have been engaged in criminal activity, and a federal judge reviews the affidavit and application before deciding whether to issue the Order. If the Order is issued, then the files identified by the Sec. 702 queries can be opened and inspected.

What the Report discloses, however, are numerous instances where Sec. 702 acquired information was opened and examined by FBI personnel without first seeking an Order from the FISC  under (f)(2).  Further, the Court acknowledged DOJ’s disclosure of numerous instances where the Sec. 702 queries were conducted in actual support of predicated criminal investigations not involving national security.  The Report identifies as examples cases involving health care fraud, transnational organized crime, violent gangs, domestic terrorism involving racially motivated violent extremists, as well as “public corruption and bribery” with the remainder of that reference redacted in the Report.

There has been a lot of hand-wringing and teeth-gnashing on the right over this last issue.  But to me, the use of Sec. 702 acquired information in criminal investigations touches on the pre-9/11 issue of the “wall” between intelligence and criminal investigations, and the desire to have that “wall” not be insurmountable so that evidence originating in intelligence operations can be made available to criminal investigators where appropriate.

Each of the instances of predicated criminal investigations where Sec.702 acquired information was searched are commonly found to have foreign entanglements that make it entirely predictable that a query targeting a non-US person outside the United States would produce evidence of persons inside the United States who are involved in criminal activity.  Health care fraud is a lucrative business for foreign organized crime organizations. Russian and Eastern European organized crime groups have been heavily involved as a historical matter in Medicare and Medicaid fraud involving durable medical equipment. They set up storefront operations for walkers, orthopedic shoes, and other similar kinds of medical equipment, and bill the crap out of federal programs using participant numbers that they acquire in a variety of ways.  Oftentimes these groups will have received hundreds of thousands, and even millions of dollars of payments from the federal programs before the fraud is sniffed out by auditors/investigators, and payments to the phony companies are shut down.

In a similar fashion, “violent gang” investigations might include foreign-based gangs like MS-13, which operates out of El Salvador. So you would expect to see evidence of communications between individuals in El Salvador — property targeted under FISA and Sec. 702 — with individuals in the United States who are the subject of criminal investigations.

The redaction following the reference to “bribery and public corruption” is the one that seems to have generated the most outrage, with the speculation being it includes searches related to domestic political opposition groups.  But the redaction is the most telling sign in my view.  My strong suspicion is that the redacted information is a reference to the United Nations and the Foreign Corrupt Practices Act, and not about domestic political opponents.  Remember, this Report by the Court is in response to filings for recertification and reauthorization made by the Justice Department on October 19, 2020, covering a reporting period that mostly involved 2019.  Donald Trump was still the President and William Barr was still the Attorney General.

The Department of Justice and the FBI aggressively target foreign actors who engage in various forms of corruption and bribery connected to the UN and foreign government officials who can be found there.  Many have diplomatic immunity from prosecution, but most do not.  There is no question that Sec. 702 searches of foreign government officials outside the United States will often turn up communications between such officials and persons inside the United States at places like embassies or United Nations Missions.

But, that does not change the fact that within the FBI there still remains a “culture” that is predisposed to a default position of gathering intelligence through whatever means is available, even if that means is intended to be “off-limits” except in very narrow circumstances.  This is a problem that Congress needs to confront and fix, and if the FBI needs to lose access to Sec. 702 material for a period of time in order to learn to live with the limitations, then so be it.