FBI Improperly Used Surveillance Program to Spy on Jan. 6 Suspects

The recently unsealed ruling by a federal court highlights the abuse of surveillance powers by the FBI during its investigations into the January 6, 2021 breach of the U.S. Capitol and Black Lives Matter protesters. According to the ruling, the FBI exceeded the standards set for the Section 702 program, which allows spying on individuals, by conducting more than 278,000 searches without proper justification.

Section 702 permits agencies like the FBI to collect information, such as emails, from foreigners even if they are within the United States, while explicitly prohibiting the intentional targeting of Americans.

The FBI had established its own standard for Section 702 searches, stating that queries should be reasonably likely to retrieve foreign intelligence information or evidence of a crime. However, the court found that FBI agents consistently violated this standard, with the recent ruling exposing hundreds of thousands of abusive searches that were previously undisclosed. These improper searches included queries specifically targeting individuals suspected of involvement in the Capitol breach on January 6.

One notable example involved an analyst searching for information on 13 individuals believed to be connected to the breach. The analyst claimed that the queries were conducted to determine if these individuals had any foreign ties. However, the Department of Justice's National Security Division concluded that the queries were not reasonably likely to produce any foreign intelligence information or evidence of a crime.

In another case, over 23,000 separate queries were performed to investigate whether presumed Americans were associated with a group involved in the Capitol breach. The court revealed that the analyst conducting these queries had no indications of foreign influence related to the search terms used. The National Security Division confirmed that there was no factual basis to believe that these queries would yield any foreign intelligence information or evidence of a crime.

The recently released ruling also disclosed instances where FBI personnel engaged in improper surveillance of a congressional campaign. An analyst conducted a widespread query involving over 19,000 campaign donors, claiming that the campaign was targeted by foreign influence.

However, the National Security Division found sufficient evidence for queries on only eight of the individuals. Similarly, a batch query was conducted on 133 people arrested during civil unrest and protests in 2020, primarily related to the death of George Floyd. The court found that these queries violated FBI standards, although the FBI disputed this claim and cited redacted evidence to suggest a reasonable basis for foreign intelligence.

Additional violations in 2020 included queries using identifiers related to political activist groups involved in protests, searches for defense contractors, and queries targeting employees of a redacted company that the FBI might consider recruiting as sources. Moreover, several queries were conducted without obtaining the necessary authorization from the Foreign Intelligence Surveillance Court, further infringing upon legal requirements.

Critics argue that these revelations demonstrate a recurring pattern of abuse within the FBI. They assert that despite assurances from Director Chris Wray regarding FISA reforms and improvements to the system, the situation continues to deteriorate. House Judiciary Committee Chairman Jim Jordan expressed his concerns, emphasizing the need for congressional action to address these issues.

Although the FBI claims to have implemented changes to address these abuses, including enhanced training, increased auditing, and revised guidance on querying standards, it is evident that the problems persist. Recent data indicates that four percent of a sample of queries conducted in the latter half of 2021 and the first quarter of 2022 violated the established standards. Members of Congress are now contemplating whether to reauthorize the law granting these surveillance powers.

Critics of the FBI's actions argue that the widespread abuses described in the court's opinion reflect the agency's inclination to engage in warrantless surveillance of all Americans. They contend that these unconstitutional practices should be discontinued, and the Section 702 powers should be revoked. Concerns regarding privacy and civil liberties have been raised, and the Electronic Frontier Foundation's Aaron Mackey insists that the FBI's conduct necessitates a strong response from Congress.

U.S. District Judge Rudolph Contreras, while acknowledging the FBI's efforts to address compliance issues, cautions that these problems have persisted on a significant scale.

He suggests that if the recent measures do not substantially mitigate the issues, alternative measures, such as reducing the number of FBI personnel with access to unminimized Section 702 information, may need to be considered. Judge Contreras appears hopeful that the amendments to the FBI's querying procedures will have a positive impact, but he warns that further action may be necessary if the problems persist.