The FBI abused its surveillance of Americans 278,000 times in 18 months

Section 702 of the FISA Act allows agencies like the NSA to eavesdrop on foreign nationals overseas. It prohibits spying on US citizens or anyone who's within the United States.

But sometimes NSA ends up collecting the communications of US citizens anyway. Quite often, in fact. This is legal as long as it's not intentional.

In practice, then, NSA maintains a huge database of information about the communications of US citizens. Agencies like the FBI are allowed to query this database, but only under strict rules. The primary rule is that queries can only be done if they are related to foreign intelligence or are likely to show evidence of a crime.

But sometimes mistakes are made. I missed this when it first came out because I was lolling around at City of Hope, but a recently released FISA court document tells us just how often the FBI has misused this database to target American citizens:

278,000! And this is over a period of about a year-and-a-half from 2020 through 2021. Non-compliant queries included:

• 360 queries regarding drugs and gangs.
• 23,132 batch queries regarding the January 6 Capitol riots.
• 19,000 queries of donors to a congressional campaign.
• 467 queries of defense contractors.
• 483 queries of visitors to something that was redacted.
• 133 queries of people arrested during the George Floyd protests in 2020.

In all of these cases and more, the Department of Justice concluded that the queries were unlikely to retrieve either foreign intelligence or evidence of a crime. Nor is this anything new. It comes on top of what the FISA court calls a "historical pattern of non-compliant queries conducted by the FBI."

The FBI claims that it has finally cleaned up its act and that searches of US citizens are down 94% since 2021. But if the non-compliance rate has stayed the same, this still comes to about 11,000 non-compliant queries per year. It's no wonder that both Democrats and Republicans on the Senate Judiciary Committee are skeptical about renewing authorization for Section 702:

“I will only support the reauthorization of Section 702 if there are significant, significant reforms,” said Senate Judiciary Chairman Richard J. Durbin (D-Ill.). “And that means first and foremost, addressing the warrantless surveillance of Americans in violation of the Fourth Amendment.”

....Lindsey O. Graham (R-S.C.), said that in the United States broadly, “there’s a warrant requirement to investigate an American citizen for wrongdoing. And we don’t want this to be used to get around that requirement. So bottom line is, let’s reauthorize this program and build in some safeguards.”

....“Why should we ever trust the FBI and DOJ again to police themselves under FISA when they’ve shown us repeatedly over more than a decade that they cannot be trusted to do so?” Sen. Mike Lee (R-Utah) said.

The Biden administration wants Section 702 renewed and says that a warrant requirement for searches of US citizens would clog up the courts. But this is only true if you assume the FBI should be doing such a vast number of queries in the first place. If they limited themselves to cases where there was truly evidence of a crime—as they're supposed to—the number of warrants they'd need would plummet.

The history of mass surveillance has made it crystal clear that we can't rely on mere administrative approval for searches of digital communications databases. In case after case after case, this leads to abuses—which should surprise no one. Cops are always going to take shortcuts because their only motive is to catch bad guys, full stop. This is barely even a criticism of cops. It's just the nature of their job. The only way to make sure they do it legally is to require warrants that show probable cause, and then throw cases out of court if a warrant turns out to be deficient. This is what Congress should require before they reauthorize Section 702.