“There still appear to be widespread violations of the querying standard by the FBI,” chief FISA judge James Boasberg said in a December ruling that was declassified and made public with heavy redactions on Friday.
Those querying rules are meant to protect the privacy rights of American citizens and require that the warrantless searches of emails and telephone calls have a foreign-intelligence or law-enforcement purpose. Boasberg said the FBI last year made at least 87 queries – which are done by collecting data from Google, Verizon and other communication conduits – that “were not reasonably likely to retrieve foreign-intelligence information or evidence of a crime.”
In one such incident, the FBI last August tapped communications involving about 16,000 Americans, despite only seven of those people being tied to the investigation involved. Boasberg rejected FBI claims that the searches were all likely to find foreign intelligence or evidence of a crime, saying that apart from the seven relevant suspects, the queries were “broad” and “suspicionless.”
The FISA court previously ruled that such queries violate privacy rules and directed the FBI to require agents to document why each query is legally justified. “The FBI is really just starting to implement that documentation requirement on a comprehensive basis,” Boasberg said. “For that reason, the improper queries described above do not undermine the court’s prior determination that, with that requirement, the FBI’s querying and minimization procedures meet statutory and Fourth Amendment requirements.”
Boasberg granted the FBI its yearly reauthorization to continue using its warrantless wiretapping program. The ruling surfaced just two days after a federal appeals court found that a similar program used by the National Security Agency to spy on Americans was illegal. NSA whistleblower Edward Snowden exposed that program in 2013.
Both surveillance programs stemmed from spying activities the government began after the Sept. 11, 2001, terrorist attacks. When Congress reauthorized warrantless wiretapping in 2018, it required the FISA court to approve rules each year setting boundaries for how the FBI may collect data under Section 702 of the FISA Amendments Act.
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