About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

1 FBI's New Internal Procedures Continue to Allow Warrantless Surveillance of Americans under Section 702 1 (2023)

handle is hein.agopinions/fbinwi0001 and id is 1 raw text is: Lues (e to AllowX Warral Surve iance ol Arnericaus Under Seclion 702 On June 13, 2023, the FBI announced internal procedural changes that are intended to increase accountability for violations of internal rules governing U.S. person queries. The changes include a three strikes policy for FBI agents who violate rules (although the Department retains discretion to decide what to do after the third strike) and provisions to include FISA compliance in the performance evaluations of leaders of FBI field offices. This is not a serious response. The government wants to rely exclusively on the same kind of internal safeguards that have completely failed to protect Americans' privacy time and time again, and has failed to meaningfully engage with the concerns expressed by lawmakers and the American public. Simply put, this response is completely out of touch with both the level of abuse perpetrated by intelligence agencies and other serious threats to our privacy, like government agents tracking us through data brokers. The undersigned organizations have been working through a bipartisan coalition to enact truly comprehensive privacy protections for people in the United States. The following context illustrates why the FBI's most recent policy change is inadequate to protect Americans' constitutional rights: Warrantless backdoor searches. The FBI's changes do nothing to stop warrantless searches of Section 702-acquired data to find Americans' communications. Any reforms to backdoor searches that do not involve a requirement to obtain a warrant or FISA Title I order are dead on arrival given the staggering history of abuse of this practice. Previous internal oversight measures, which the government repeatedly touted as robust, failed to prevent flagant abuses, including 113 warrantless searches aimed at Black Lives Matter protesters; 19,000 searches for the communications of donors to a single congressional campaign; tens of thousands of searches relating to the January 6th attack on the U.S. Capitol; and a backdoor search for information about a sitting U.S. congressman. The government's own internal oversight found all of these to be unlawful under agencies' own existing rules. The government then implemented additional training and oversight measures in 2021 and 2022, which it claimed would prevent the widespread violations the FISA Court had found. But the government's own data showed that these changes were insufficient. According the FBI's recent internal audit, after the FBI's changes, the rate of non-compliance is four percent. With the FBI conducting roughly 200,000 backdoor searches annually, that means the FBI will be conducting over 8,000 backdoor searches each year that violate its own internal rules. Coming back to the table with yet more changes to internal oversight procedures shows that the government is not serious about Section 702 reform. Promises of even perfect compliance with internal agency policies cannot replace warrants issued by a court on a showing of probable cause under any circumstances, and they are particularly inadequate given the government's track record of violations. Congress must reject this empty solution. 1 tures to

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most