Newly declassified court documents indicate that the FBI failed to comply with the Foreign Intelligence Surveillance Act (FISA) in targeting Americans while searching through NSA records during President Trump's administration and after James Comey's tenure as FBI director.
An October 2018 ruling from the Foreign Intelligence Surveillance Court (FISC) found that the FBI violated Section 702 by not keeping track of searches that pertained to "United States persons," and that proposed changes were still not enough to comply with the law. That ruling was later affirmed on appeal in July 2019. The documents were declassified and released Tuesday.
FISA Section 702, which deals with targeting people outside the U.S. for gathering foreign intelligence information, places restrictions on gathering information when it comes to Americans or people located in the U.S.
“Because the FBI's proposed procedures do not require it to keep records that ‘indicate whether terms are United States person query terms,’ the FISC held that these procedures do not comply with Section 702(f)(l)(B),” said the decision from the Foreign Intelligence Surveillance Court of Review (FISC-R), which heard the appeal.
The queries examined took place between 2017 and 2018, which would largely be during FBI director Chris Wray's tenure and during the Trump presidency. The FBI did not immediately return a request for comment.
The FBI has argued that because they kept general records of the search terms used that was enough to satisfy Section 702’s requirement of keeping search records, but the court found that because they did not specify which queries were related to a “United States person,” it did not satisfy the law’s requirement.
For context, the FISC ruling noted that in 2017, the FBI ran "approximately 3.1 million queries against raw FISA-acquired information, including section 702-acquired information." While the FBI's failure to specify which ones pertained to U.S. persons, making it difficult to determine how many searches were affected by their insufficient practices, Judge James Boasberg noted that "given the FBI's domestic focus it seems likely that a significant percentage of its queries involve U.S.-person query terms."
Boasberg's ruling also ordered the government to keep written records of each instance where the FBI reviews information “concerning a United States person” obtained through Section 702, where the query was “not designed to find and extract foreign-intelligence information." These records shall include details of the information, how it is meant to be used, and the search terms used to get the information.
After the July 2019 FISC-R decision, the FBI submitted new proposed procedures that the court deemed acceptable in a September ruling.
The newly released decisions came after FISC Judge Rosemary Collyer’s 2017 ruling, which found that officials under the Obama administration used FISA to conduct illegal surveillance of American citizens for years.
A soon-to-be-released report from the Justice Department Inspector General will explore whether the FBI conducted a different sort of FISA abuse in connection with former Trump campaign adviser Carter Page.
During the early stages of the investigation of Russian interference with the 2016 election, the FBI obtained a warrant to monitor Page, which Republicans claim was based on a misrepresentation of evidence in the form of an unverified dossier compiled by former British spy Christopher Steele as opposition research for Democrats and the Clinton campaign.