FBI Director Admits Agency Rarely Has Probable Cause When It Performs Backdoor Searches Of NSA Collections

By Tim Cushing: TechDirt.com

After years of continuous, unrepentant abuse of surveillance powers, the FBI is facing the real possibility of seeing Section 702 curtailed, if not scuttled entirely.

Section 702 allows the NSA to gather foreign communications in bulk. The FBI benefits from this collection by being allowed to perform “backdoor” searches of NSA collections to obtain communications originating from US citizens and residents.

There are rules to follow, of course. But the FBI has shown little interest in adhering to these rules, just as much as the NSA has shown little interest in curtailing the amount of US persons’ communications “incidentally” collected by its dragnet.

In recent months, several Republicans have argued against a clean re-authorization of Section 702 powers, citing the FBI’s backdoor snooping on Trump administration figures, as well as certain Republicans who have outlasted Trump’s four-year stint as the supposed leader of the free world.

On top of this opposition, there’s something more bipartisan. Every time surveillance powers are up for renewal, Senator Ron Wyden and other privacy focused legislators have offered up comprehensive surveillance reform packages.

The latest effort by Wyden would create a warrant requirement for these backdoor searches by the FBI. Senate leaders tried to dodge this by slapping a clean re-auth rider on a “must pass” budget bill, but legislators found a way to keep the government funded for a little bit longer while they continue to argue over who gets what and how much of it.

Faced with the real possibility of seeing this surveillance authority heavily altered, if not discarded completely, the FBI is making its case for a year-end approval of status quo continuation. But it’s making some really bad arguments.

FBI director Chris Wray took time out his busy “everything is going dark” schedule to speak to House representatives on behalf of his agency and its desire to continue to abuse this access to NSA collections. Unfortunately for Wray, the statements he made inadvertently exposed the lack of legal basis for FBI access to communications collected by the NSA.

First though, he pretended he cared whether or not Americans were subject to unconstitutional spying, as Jessica Hardcastle reports for The Register.

He did address the FBI’s earlier abuses of Section 702 to spy on protesters, campaign donors, and even elected officials.

“To be sure, no one more deeply shares Members’ concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do,” Wray said. 

That can’t possibly be true. If it were, Wray’s concern would surpass the concern expressed by any number of rights and privacy groups, as well as legislators who have worked for years to curtail this abuse, only to see their reform efforts shot down by the lawmakers who care even less about the FBI’s violations than the FBI itself.

If this statement were even remotely true, Wray wouldn’t be trying to talk legislators into dumping Wyden’s reform bill, much less advocating for continued warrantless access to US persons’ communications.

Wray’s argument for continued warrantless access was somehow even worse than his pretending to care about surveillance abuses. Somehow, the FBI director managed to blurt out what everyone was already thinking: that the FBI needs this backdoor access because it almost never has the probable cause to support the search warrant normally needed to access the content of US persons’ communications.

A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time — which, in the world of rapidly evolving threats, the government often does not have,” Wray said. 

Holy shit. He just flat-out admitted it: a majority of FBI searches of US persons’ communications via Section 702 are unsupported by probable cause. That alone should be enough to, if nothing else, forbid the FBI from using this back door. This is on top of the years of continuous abuse of these surveillance powers by the FBI — something so egregious even the FISA court has considered shutting down the FBI’s access. And that’s with the FISA court’s unwavering ability to both forgive and forget the FBI’s constant trespasses.

If Wray is to be believed — and there’s no reason not to, since he’s arguing in self-interest — probable cause either doesn’t exist or takes too long. This is the same guy who, moments earlier, claimed he was the most concerned about FBI abuse of this surveillance power. Yet, moments later, he’s telling legislators his agency is incapable of complying with the Fourth Amendment, or simply just unwilling to do so.

While I’m less than thrilled certain Republicans have decided Section 702 is bad only when it hurts them, I’m happy to see this power face the real possibility of meaningful reform, if not actual extinction. It’s been a long time coming. Unfortunately, both the FBI and the current administration are united in their desire to keep this executive authority intact. Both Wray and the Biden administration call the warrant requirement a “red line.” So, even if the House decides it needs to go (for mostly political reasons) and/or Wyden’s reform bill lands on the President’s desk, odds are the FBI will get its wish: warrantless access to domestic communications for the foreseeable future.