Reporting Mandates Likely The Reason Behind The FBI’s Sudden Drop-Off In Section 702 Abuses

Earlier this month, we reported (via Charlie Savage of the New York Times) that the FBI had finally delivered its first reduction in Section 702 abuses in the entirety of its access to this particular NSA collection.

The upstream collection touches a tremendous amount of foreign communications. It also captures communications from US persons communicating with foreign persons. The FBI is allowed to access this database to search for evidence to be used in its investigations, but the search process is supposed to deliver minimized information pertaining to US persons. If the FBI wants this information unmasked (to identify the US person involved), it’s supposed to obtain permission from the FISA court or obtain a warrant to perform additional searches of the same US-based source.

It simply has refused to do that for more than a decade. Its refusal to comply with the Fourth Amendment has made it a frequent target of congressional and FISA court criticism. But harsh words haven’t done much to alter how the FBI (mis)handles its access to Section 702 collections.

This continual abuse — along with recent (and opportunistic) Republican complaints about “deep state” thwartery — has managed to finally place Section 702 on the chopping block. Sure, lots was said about surveillance reform following the Snowden leaks, but Section 702 was never really considered expendable. But angry Republicans have a majority in the House at the moment and the desire to finally terminate this surveillance authority.

The FBI has been on its heels for a bit, thanks to some (mostly) specious criticism from one particular former president and its careless handling of investigations targeting GOP-bros like Carter Page. The FBI definitely deserves to have its access curtailed. And even if it’s just a matter of political convenience for Republicans who will almost certainly want this surveillance power back at some point, those of us who have steadily criticized both the FBI and NSA for abuses enabled by this authority won’t be shedding many tears if it’s allowed to expire.

But there’s more to the story than the FBI’s abusive relationship with its surveillance powers and the potential codification of political grandstanding. The severe drop-off in FBI 702 abuses — from 3 million searches in 2021 to only a little over 119,000 this year — isn’t the result of the FBI making incremental changes to comply with the steady drip of FISA mandates. That’s the conclusion Spencer Ackerman has drawn from reading the FISA court decision and other recently released documents pertaining to the FBI’s Section 702 access.

It’s not that the FBI wants to do better. It’s that it can no longer find some way to get away with it. For lack of a better term, the FBI has been shamed into respecting the law.

The FBI’s statements to journalists following the release of these stats assert this is simply the end result of the FBI’s continual quest for excellence and accountability. But if that was truly the case, the drop-off should have begun back in 2018, when the FBI was first handed additional Section 702 restraints and reporting requirements by its oversight and the FISA court. But those efforts failed to nudge the FBI towards “restraint” or “repairing trust,” as FBI officials have recently claimed.

As Ackerman notes, more supposed oversight and more criticism from the FISA court failed to result in any observable change in Section 702 queries between 2018 and 2021. The downturn only occurred after the FBI was handed an additional mandate: to provide its oversight and the FISA court with an accurate accounting of every Section 702 search it performed. (Emphasis in the original.)

As [FISA court judge] Contreras put it in April 2022, before that statistic was collected, “notwithstanding this foreign-directed targeting, the extent to which Section 702 acquisitions involve U.S. persons is substantial in the aggregate.” And he wrote that after the “precipitous decline” in backdoor searches.

But such a “precipitous decline” in searches, resulting from such modest changes, might suggest that the purpose of the FBI’s backdoor searches is what Wyden’s term—“backdoor search”—implies: to evade long-standing legal and Constitutional protections of Americans’ privacy. Once the FBI had to make a record of what it was doing, its officials thought better of performing many, many such searches in the first place.

Deterrence does actually work. The trick is finding out what government agencies like the FBI will actually view as deterrence. Getting verbally smacked around by FISA judges and fielding pointed questions from even dogged, um, watchdogs like Senator Ron Wyden failed to discourage the FBI from engaging in thousands (if not millions) of highly questionable searches.

What did work was demanding the agency account for all of its Section 702 searches. Once it had to provide something other than highly approximate accounting, it apparently decided closer adherence to the law, the Constitution, and the numerous other mandates handed to it over the years might be the best way to go.

The FBI can be forced to be better. It’s just a matter of finding the right leverage. But that’s not how it should be. The FBI should always strive to be the best it can be, not just when pursuing investigations but when deploying the numerous powers it’s been entrusted with. That it took more than a decade and a steady escalation of mandates to bring the FBI in line with the law isn’t a victory. It’s simply a matter of outlasting a pernicious opponent. The sad thing is that the opponent is supposed to be protecting Americans and their rights, rather than screwing them both just because it felt it could get away with it.