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FBI illegally shared data on Americans with unauthorized persons since at least 2009. FISA court finds hundreds of violations of FBI rules under Comey. FBI operates as independent state, has no timely oversight, claims to police itself-Circa.com…US intel agencies conducted illegal surveillance against Americans for 5 years during Obama admin. through late Oct. 2016-McClatchy

May 27, 2017

May 26, 2017,Secret [FISA] court rebukes NSA for 5-year illegal surveillance of U.S. citizens, McClatchy, Tim Johnson, via Miami Herald
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May 26, 2017, Declassified memos show FBI illegally shared spy data on Americans with private parties, Circa.com, John Solomon and Sara Carter

The FBI has illegally shared raw intelligence about Americans with unauthorized third parties and violated other constitutional privacy protections, according to newly declassified government documents that undercut the bureau’s public assurances about how carefully it handles warrantless spy data to avoid abuses or leaks….

Then-FBI Director James Comey unequivocally told lawmakers his agency used sensitive espionage data gathered about Americans without a warrant only when it was “lawfully collected, carefully overseen and checked.”

Once-top secret U.S. intelligence community memos reviewed by Circa tell a different story, citing instances of “disregard” for rules, inadequate training and “deficient” oversight and even one case of deliberately sharing spy data with a forbidden party.

For instance, a ruling declassified this month by the Foreign Intelligence Surveillance Court (FISA) chronicles nearly 10 pages listing hundreds of violations of the FBI’s privacy-protecting minimization rules that occurred on Comey’s watch.

The behavior the FBI admitted to a FISA judge just last month [April 2017] ranged from illegally sharing raw intelligence with unauthorized third parties to accessing intercepted attorney-client privileged communications without proper oversight the bureau promised was in place years ago.

The court also opined aloud that it fears the violations are more extensive than already disclosed. 

“The Court is nonetheless concerned about the FBI’s apparent disregard of minimization rules and whether the FBI is engaging in similar disclosures of raw Section 702 information that have not been reported,” the April 2017 ruling declared.

The court isn’t the only oversight body to disclose recent concerns that the FBI’s voluntary system for policing its behavior and self-disclosing mistakes hasn’t been working.

The Justice Department inspector general’s office declassified a report in 2015 that reveals the internal watchdog had concerns as early as 2012 that the FBI was submitting ‘deficient” reports indicating it had a clean record complying with spy data gathered on Americans without a warrant.

The FBI normally is forbidden from surveilling an American without a warrant. But Section 702 of the Foreign Surveillance Act, last updated by Congress in 2008, allowed the NSA to share with the FBI spy data collected without a warrant that includes the communications of Americans with “foreign targets.”

But the FISA court watchdogs suggest FBI compliance problems began months after Section 702 was implemented.

The FBI’s very first compliance report in 2009 declared it had not found any instances in which agents accessed NSA intercepts supposedly gathered overseas about an American who in fact was on U.S. soil.

But the IG said it reviewed the same data and easily found evidence that the FBI accessed NSA data gathered on a person who likely was in the United States, making it illegal to review without a warrant.
“We found several instances in which the FBI acquired communications on the same day that the NSA determined through analysis of intercepted communications that the person was in the United States,” the declassified report revealed.
It called the FBI’s first oversight report “deficient” and urged better oversight.
FBI officials acknowledged there have been violations but insist they are a small percentage of the total counterterrorism and counterintelligence work its agents perform.
Almost all are unintentional human errors by good-intentioned agents and analysts under enormous pressure to stop the next major terror attack, the officials said.
Others fear these blunders call into the question the bureau’s rosy assessment that it can still police itself when it comes to protecting Americans’ privacy 17 years after the war on terror began….
“No one on the Hill wants to look like we are soft on terrorism when you have increasing threats like Manchester-style attacks. But the evidence of abuse or sloppiness and the unending leaks of sensitive intelligence in the last year has emboldened enough of us to pursue some reforms,” a senior congressional aide told Circa, speaking only on condition of anonymity because he wasn’t authorized to talk to the media. “Where that new line between privacy and security is drawn will depend on how many more shoes fall before the 702 renewal happens.”…
One of the biggest concerns involves so-called backdoor searches in which the FBI can mine NSA intercept data for information that may have been incidentally collected about an American. No warrant or court approval is required, and the FBI insists these searches are one of the most essential tools in combating terrorist plots.
But a respected former Justice Department national security prosecutor questions if the searching has gotten too cavalier. Amy Jeffress, the former top security adviser to former Attorney General Eric Holder, was appointed by the intelligence court in 2015 to give an independent assessment of the FBI’s record of compliance.
Jeffress concluded agents’ searches of NSA data now extend far beyond national security issues and thus were “overstepping” the constitutional protections designed to ensure the bureau isn’t violating Americans’ 4th Amendment protections against unlawful search and seizure.
“The FBI procedures allow for really virtually unrestricted querying of the Section 702 data in a way the NSA and CIA have restrained it through their procedures,” she argued before the court in a sealed 2015 proceeding. “I think that in this case the procedures could be tighter and more restrictive, and should be in order to comply with the Fourth Amendment,” she added.
The court thanked Jeffress for her thoughtful analysis but ultimately rejected her recommendation to impose on the FBI a requirement of creating a written justification why each search would help pursue a national security or criminal matter….
That was late in 2015. But by early 2017, the court became more concerned after the Obama administration disclosed significant violations of privacy protections at two separate intelligence agencies involved in the Section 702 program.
The most serious involved the NSA searching for American data it was forbidden to search. But the FBI also was forced to admit its agents and analysts shared espionage data with prohibited third parties, ranging from a federal contractor to a private entity that did not have the legal right to see the intelligence….
The court’s memo suggested the FBI’s sharing of raw intelligence to third parties, at the time, had good law enforcement intentions but bad judgment and inadequate training.

“Nonetheless, the above described practices violated the governing minimization procedures,” the court chided. A footnote in the ruling stated one instance of improper sharing was likely intentional. 

“Improper access” to NSA spy data for FBI contractors “seems to have been the result of deliberate decision-making,” the court noted.

The recently unsealed ruling also revealed the FBI is investigating more cases of possible improper sharing with private parties that recently have come to light.

The government “is investigating whether there have been similar cases in which the FBI improperly afforded non-FBI personnel access to raw FISA-acquired information on FBI systems,” the court warned.

The ruling cited other FBI failures in handling Section 702 intel, including retaining data on computer storage systems “in violation of applicable minimization requirements.” 

Among the most serious additional concerns was the FBI’s failure for more than two years to establish review teams to ensure intercepts between targets and their lawyers aren’t violating the attorney-client privilege. 

“Failures of the FBI to comply with this ‘review team’ requirement for particular targets have been focus of the FISC’s (FISA’s?) concerns since 2014,” the court noted.
The FBI said it is trying to resolve the deficiencies with aggressive training of agents.
That admission of inadequate training directly undercut Comey’s testimony earlier this month when questioned by Sen. Dianne Feinstein, D-Calif.
“Nobody gets to see FISA information of any kind unless they’ve had the appropriate training and have the appropriate oversight,” the soon-to-be-fired FBI director assured lawmakers.
The struggle for the intelligence court and lawmakers in providing future oversight will be where to set more limits without hampering counterterrorism effort. The FBI told Circa in a statement, “As indicated in its opinion, the Court determined that the past and current standard minimization procedures are consistent with the Fourth Amendment and met the statutory definition of those procedures under Section 702.”

Jeffress, however, warned in her 2015 brief of another dynamic that will pose a challenge too, an FBI culture to use a tool more just because it can.

“These scenarios suggest a potentially very large and broad scope of incidental collection of communications between a lawful target and U.S. persons that are not the type of communications Section 702 was designed to collect,” she told the court in a written memo.

And when questioned at a subsequent hearing, Jeffress observed: I don’t think that the FBI will voluntarily set limits on its querying procedures, because law enforcement agencies tend not to take steps to restrict or limit what they can do, for obvious reasons.””
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The criticism is in a lengthy secret ruling that lays bare some of the frictions between the Foreign Intelligence Surveillance Court and U.S. intelligence agencies obligated to obtain the court’s approval for surveillance activities.

The ruling, dated April 26 and bearing the label “top secret,” was obtained and published Thursday by the news site Circa.

It is rare that such rulings see the light of day, and the lengthy unraveling of issues in the 99-page document opens a window on how the secret federal court oversees surveillance activities and seeks to curtail those that it deems overstep legal authority.

The document, signed by Judge Rosemary M. Collyer, said the court had learned in a notice filed Oct. 26, 2016, that National Security Agency analysts had been conducting prohibited queries of databases “with much greater frequency than had previously been disclosed to the court.” 

It said a judge chastised the NSA’s inspector general and Office of Compliance for Operations for an “institutional ‘lack of candor’” for failing to inform the court. It described the matter as “a very serious Fourth Amendment issue.” 

The Fourth Amendment protects people from unreasonable searches and seizures by the government, and is a constitutional bedrock protection against intrusion.

Parts of the ruling were redacted, including sections that give an indication of the extent of the illegal surveillance, which the NSA told the court in a Jan. 3 notice was partly the fault of “human error” and “system design issues” rather than intentional illegal searches.

The NSA inspector general’s office tallied up the number of prohibited searches conducted in a three-month period in 2015, but the number of analysts who made the searches and the number of queries were blacked out in the ruling.

The NSA gathers communications in ways known as “upstream” and “downstream” collection. Upstream collection occurs when data are captured as they move through massive data highways – the internet backbone – within the United States. Downstream collection occurs as data move outside the country along fiber optic cables and satellite links.

Data captured from both upstream and downstream sources are stored in massive databases, available to be searched when analysts need to, often months or as much as two years after the captures took place.

The prohibited searches the court mentioned involved NSA queries into the upstream databanks, which constitute a fraction of all the data NSA captures around the globe but are more likely to contain the emails and phone calls of people in the United States.

Federal law empowers the NSA and CIA to battle foreign terrorist actions against the United States by collecting the electronic communications of targets believed to be outside the country.

While communications of U.S. citizens or residents may get hoovered up in such sweeps, they are considered “incidental” and must be “minimized” – removing the identities of Americans – before broader distribution.

The court filing noted an NSA decision March 30 to narrow collection of “upstream” data within the United States. Under that decision, the NSA acknowledged that it had erred in sweeping up the communications of U.S. citizens or residents but said those errors “were not willful.” Even so, the NSA said it would no longer collect certain kinds of data known as “about” communications, in which a U.S. citizen was merely mentioned.

The NSA announced that change publicly on April 28, two days after the court ruling, saying the agency would limit its sweeps to communications either directly to or from a foreign intelligence target. That change would reduce “the likelihood that NSA will acquire communications of U.S. persons or others who are not in direct contact with one of the agency’s foreign intelligence targets.” 

The court document also criticized the FBI’s distribution of intelligence data, saying it had disclosed raw surveillance data to sectors of its bureaucracy “largely staffed by private contractors.” 

The “contractors had access to raw FISA information that went well beyond what was necessary to respond to the FBI’s requests,” it said, adding that the bureau discontinued the practice on April 18, 2016.”

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