Federal Agencies Routinely Spy on Phone Calls, Texts, Emails of American Citizens, Experts Say

Congress debates renewing FISA Section 702 amid reports of ‘persistent’ abuse

The headquarters of the FBI is seen in Washington, D.C. (Mark Wilson/Getty Images)

By Kevin Stocklin

Despite
the Constitution’s Fourth Amendment, which prohibits warrantless
government searches, U.S. agencies are proving to be ever more intrusive
in their routine surveillance of Americans’ speech and activities.

Often
working in collaboration with private companies and banks, agencies
like the FBI have been misusing laws against foreign terrorism to vacuum
up and sift through the private data of millions of Americans without a
warrant or any evidence of a crime.

As Congress now debates
reauthorizing relevant sections of the Foreign Intelligence Surveillance
Act (FISA) that are set to expire this year, the libertarian Cato
Institute held a four-day conference last week, which featured calls for
major legal reforms by conservative and liberal speakers alike.

“The
violations that we’ve seen have not just been epic in scale, but
they’ve also been persistent, over and over again,” Jake Laperruque, a
deputy director at the Center for Democracy and Technology, told
attendees.

“To put a human scale on this, what we’re talking about
is not just random typos or wrong clicks; we’re looking at things like
pulling up batches of thousands of political donors in one go, without
any suspicion of wrongdoing,” Laperruque said. “We’ve had reports of
journalists, political commentators, a domestic political party; these
compliance violations are the most worrisome type of politically focused
surveillance.”

In 2001, Congress passed the PATRIOT Act as a
means to combat foreign terrorism after the Sept. 11 attacks. In 2008,
Congress added an amendment to FISA, Section 702, which authorized
warrantless surveillance of non-U.S. persons located outside the
country. This amendment, which critics say is the source of much of the
abuse, is scheduled to “sunset” on Dec. 31.

Evidence of Abuse

Congressional
debates about whether to renew Section 702 are coming amid numerous
reports that the FBI and other federal intelligence agencies have abused
the surveillance authority granted to them by this law. Critics say
there is mounting evidence that federal agencies have been using laws,
which were intended to target foreign terrorists, to conduct extensive,
long-term domestic spying campaigns on U.S. citizens.

“To prevent
Section 702 from being used as an end run around [Fourth Amendment]
protections, Congress did two things: It required the government to
minimize the collection, sharing and retention of Americans’ personal
information … and it required the government to certify to the FISA
court on an annual basis that it is not using Section 702 to try to
access the communications of particular known Americans,” Elizabeth
Goitein, a senior director at New York University’s Brennan Center for
Justice, told conference attendees.

“What has become abundantly
clear over the last 15 years is that these protections are not working,”
Goitein said. “All agencies that receive Section 702 data have
procedures in place, approved by the FISA court, that allow them to run
electronic searches … for the purpose of finding and retrieving the
phone calls, text messages and emails of Americans.”

A report
by the Brennan Center for Justice states that “since 2006, the National
Security Agency (NSA) has been secretly collecting the phone records of
millions of Americans from some of the largest telecommunications
providers in the United States, via a series of regularly renewed
requests by the Federal Bureau of Investigation (FBI).”

In
addition, the report states that “over the past six years, the NSA has
obtained unprecedented access to the data processed by nine leading U.S.
internet companies. This was facilitated by a computer network named
PRISM. The companies involved include Google, Facebook, Skype, and
Apple.”

Rise of Data Brokers

Speaking
to attendees of the Cato Institute conference, Nathan Wessler, a
director at the American Civil Liberties Union (ACLU), detailed “the
rise of data brokers” that assemble enormous databases of photo IDs that
they then sell to law enforcement for profit.

“Many companies are
selling face recognition algorithms to government and private industry
buyers,” Wessler said. “That might be state driver’s license photos,
arrest photos, federal passport photos.

“And then there’s another
company, ClearView AI, which has been scouring the internet for billions
of photos,” he said. “The last I heard, they had a database of 30
billion photos of people from social media, from employer websites, from
local newspapers, and anywhere else on the internet where there’s a
photo that might be attached to a name, building giant databases of face
prints extracted from those photos, and selling that to police
departments and other law enforcement around the country.”

This,
Wessler said, “presents a truly unprecedented ability for the government
to instantaneously identify anyone in any situation and then take
action without usually any kind of court oversight, and often in
tremendous secrecy.”

“We have legacy photo data sets of almost all
of us,” said Clare Garvie, counsel at the National Association of
Criminal Defense Lawyers. “As a practical matter, most of us are in
numerous of these, and they’ve been almost instantaneously turned into
biometric data sets.”

According to Garvie, the collection of these
biometric data sets by law enforcement started around 2001, and has
been expanding ever since.

“That really happened without any
notice to the public, any sort of negotiation or discussion about
enrollment,” she said. “Its adoption has predated by almost 20 years any
sort of public discussion about regulation, control, etc.”

This data collection comes at a time when the Transportation Security Administration (TSA) is expanding the use
of facial recognition software at airports. It is also coming at a time
when, in the wake of numerous scandals, an increasing number of
Americans are losing trust in the FBI and the Department of Justice.
According to polls in 2021 and 2022, about half of all Americans have an unfavorable opinion of the FBI.

On
May 12, Special Counsel John Durham released his report regarding the
FBI investigation of alleged Russian collusion, which ultimately proved
to be a hoax, in Donald Trump’s 2016 presidential campaign. Durham found
that throughout an investigation that was “predicated on unvetted
hearsay information,” senior leaders at the FBI violated their own rules
and applied a double standard in how they treated Trump compared with
his Democrat opponent, Hillary Clinton.

“What Durham found is that
apparently no one in the FBI or the National Security Division at DOJ
thought it would be a good idea to go to NSA and CIA and ask them, ‘Hey,
do you have anything that would corroborate this?’” said Patrick
Eddington, a senior fellow at the Cato Institute. “And when you’re
talking about an investigation that targeted the campaign of a
presidential candidate, if they were that sloppy there, then how much
more sloppy are they being with folks that don’t have the kind of power
and influence that Donald Trump does, or that Hillary Clinton does?”

House Works to Extend Section 702

While Section 702 was designed to combat foreign terrorism, the FBI
has been accused of using it for purely domestic reasons, including to
track down Americans who participated in the U.S. Capitol breach on Jan.
6, 2021. And this effort is alleged to be part of a pattern of FBI
surveillance of American citizens, including most recently charges that
the FBI has targeted parents who protest school curricula and Catholics
who oppose abortion rights.

In a March 24, 2022, letter to FBI
Director Christopher Wray, Rep. Jim Jordan (R-Ohio) and Rep. Mike Turner
(R-Ohio) cited a report by the Director of National Intelligence (ODNI)
that “from December 2020 through November 2021, the FBI conducted 3.3
million U.S. person inquiries against its Section 702 holdings. This was
a substantial increase from the number of U.S. person queries the FBI
conducted from December 2019 to November 2020, which was approximately
1.3 million.”

“These are long, ongoing programs that do not
involve war in the traditional sense of the word,” said Bob Goodlatte, a
former U.S. Representative and Chairman of the House Judiciary
Committee. “They are done in such a way that Americans’ rights under the
Fourth Amendment are violated constantly, all day, every day.”

“The
FBI routinely conducts these queries at the ‘assessment’ stage of its
investigations, which is before the Bureau has a reasonable factual
basis to suspect criminal activity, let alone probable cause and a
warrant,” Goitein said. “The FBI conducted around 200,000 backdoor
searches in 2022 alone, so that’s more than 500 warrantless search of
Americans’ communications every day.

“The NSA and CIA also conduct
thousands of backdoor searches every year,” she continued. “When you
look at these numbers, it becomes clear that what was supposed to be a
solely foreign focused authority has in fact become a very powerful
domestic spying tool.”

The ODNI report also cited an FBI bulk
inquiry of 19,000 donors to a congressional campaign. In addition to the
FBI’s alleged collaborating with tech and telecom companies to collect
data on Americans, there have been allegations of collaboration with
banks, as well.

Following an FBI “whistleblower” report that “Bank
of America (BoA) provided the FBI—voluntarily and without any legal
process—with a list of individuals who had made transactions in the
Washington, D.C., metropolitan area with a BoA credit or debit card
between January 5 and January 7, 2021,” Jordan and Rep. Thomas Massie
(R-Ky.) wrote on June 12 to JPMorgan Chase, Citigroup, Truist Financial
Corp., Wells Fargo, and U.S. Bank, demanding information regarding
whether they had acted in similar fashion.

‘In the Government’s Crosshairs’

“If
you go back and you actually look at the historical record, an awful
lot of groups, either ethnically, religiously, politically, have wound
up in the government’s crosshairs, and it’s a completely consistent
pattern,” Eddington said. “That’s what, to me, speaks to the larger
problem that we’re dealing with here.”

“What was fascinating and
terrifying was to go through records from the World War I era and to see
just exactly how victimized German Americans were, and I’m talking
about lynchings, I’m talking about murders,” Eddington said. “The focus
on Arab and Muslim Americans easily goes back to the Palestinian rights
era.”

“Some of the worst surveillance abuses in recent history
have all been done under this idea of defensive surveillance” against
foreign enemies, Laperruque said, citing cases like Martin Luther King
being monitored because the civil rights and anti-war movements
allegedly represented security threats during the Vietnam War. “It’s
proven to be some of the most vulnerable types of surveillance to
abuse.”

Brett Holmgren, assistant secretary of state, said on May 30
that, while he found the abuses of Section 702 “disturbing,” the
program should continue. Holmgren, who oversees the State Department’s
Bureau of Intelligence and Research (INR), said the national security
and diplomatic uses of 702 were essential and downplayed the abuses.

“Today,
INR and the State Department that we serve, is at risk of losing access
to one of the most important streams of intelligence on which we rely …
Section 702 of the Foreign Intelligence Surveillance Act,” Holmgren
said.

Goodlatte said that Section 702 can be reformed in a bipartisan way to prevent many of the current violations from recurring.

“This
is a tremendous opportunity because of the heightened awareness on both
sides of the aisle in Congress of these abuses,” Goodlatte said.
“Congress can act in a very bipartisan way, and I think is disposed to
act in a very bipartisan way.”

“Section 702, on one level, is an
incredibly technical and complicated bill, and I think the government
uses that to its advantage,” Goitein said. “But if we get lost in a
conversation about technical details, we’re missing the big picture.

“What
Section 702 is being used for right now is not complicated at all; it’s
being used for warrantless access to Americans’ communications,” she
continued. “That is the principle we need to hold on to, that
surveillance in this country, surveillance of Americans, should be
pursuant to a warrant, and there should be robust mechanisms in place to
ensure accountability and oversight.

“I think as long as we keep
our eye on those big principles and don’t get lost in the legal weeds,
we’re going to end up with a pretty good outcome,” she said.

“We
cannot have a regime where the people doing the watching are also
watching themselves for abuse and misconduct,” Laperruque said. “I do
think that 702 can be reformed, but we need to remove it from this realm
of self-policing … and actually have items like a warrant rule, where
if the FBI or NSA or CIA wants to conduct a query to pull up Americans’
communications, it has to get a court order first.”