A partially-declassified court order, from the US’ secret surveillance court, reveals a “precipitous decline” in the number of searches the FBI has made of a bulk data collection database containing details of millions of Americans.

This decline correlates to the imposition of procedures, established by the Foreign Intelligence and Surveillance Act (FISA) Court, requiring FBI personnel to justify their searches of this database. The order in question is dated 22 August 2022 and was partially-declassified on 19 May 2023.

Queries of the surveillance database have become known as “backdoor searches”.

Illegal FBI Searches of Digital Database Declines

The FBI made 79,848 improper searches for information belonging to people known to be, or presumed to be, US persons, between September and November 2021, according to the FISA Court.

National security journalist Spencer Acckerman published this revelation yesterday, after reviewing the 127-page court order.

“That’s a decline of about half from the 159,634 FBI backdoor searches between June and August of that year, when the changes [imposed by the FISA Court] were starting to go into effect,” Ackerman notes.

The reduction represents a “precipitous decline” from the “over one million such [warrantless searches] reported for the March-May 2021 period and the over two million reported for the prior three months,” Judge Contrera observed.

The FBI reportedly attempted to spin the report as representing the success of “built-in oversight” put in place by the US Congress in 2018, during a background call with the press, according to Ackerman. 

But Judge Contrera and Ackerman offer a different explanation.

“The only apparent explanation for that decline [in searches] is the modifications [REDACTED] of June 29, 2021, and to [REDACTED] as of August 26, 2021, that require users to affirmatively elect to run searches against unminimized Section 702 information. Such a reduction in overall queries should, in and of itself, result in many fewer violations.”

As Spencer Ackerman summarised it:

“[O]nce the FBI was compelled by the FISA Court to perform such basic tasks as minimally recording the queries and the purposes of backdoor searches, the changes partially deterred the FBI from using a warrant-free search through a warrant-free database.”

Hundreds of Thousands of Illegal Searches Under Section 702

For over a decade, the FBI — along with other US governmental agencies — have been accessing a vast database containing personal data vacuumed up from millions of people living in the US, by the National Security Agency, without a warrant or meaningful oversight. 

This includes phone calls, emails and other forms of online communication.

The legal authority cited for this bulk data collection is Section 702 of the Foreign Intelligence Surveillance Act (FISA) 1978 which also created the FISA Court itself. The court was designed to receive “applications submitted by the United States Government for approval of electronic surveillance, physical search, and other investigative actions for foreign intelligence purposes.” 

Section 702 is designed to target only non-US persons, based outside of the US, for the purpose of serious criminal investigations such as those relating to international terrorism. Section 702 also requires “specific procedures to minimise the acquisition, retention, and sharing of any information concerning United States persons,” according to the US government.

Yet, the same court order which revealed the decline in illegal searches also revealed that the FBI improperly used the Section 702 database over 278,000 times to search for raw data on individuals, between April 2020 and March 2021. In an unusual move, the FISA Court warned that the number of FBI agents permitted to access this database might be “substantially limited” if these violations weren’t addressed.

The FBI illegally used the database to search the details of crime victims, people “arrested at or associated with civil unrest and protests” such as Black Lives Matter and those “suspected of involvement in the January 6, 202 Capitol breach,” the Judge notes. None of which had any connection with international terrorism or weapons of mass destruction.

In 2021, a separate, partially-declassified FISA Court order also described a wide range of issues these warrantless database searches were used for including: health-care fraud, organised crime, gang violence, domestic terrorism, public corruption, and bribery.

The Fourth Amendment to the US Constitution explicitly prohibits “unreasonable search and seizures”. “For a judge to issue a search warrant,” the US Congress’ explains, “there must be probable cause and a particularized description of what is to be searched or seized.”

All 50 US states have a version of the Fourth Amendment within their own constitutions, some of which replicate the language verbatim.

The FISA Court’s Limitations

Almost all applications made to the Court, along with its decisions, are classified and remain secret. The FISA Court is responsible for approving procedures that the NSA, FBI and other agencies are supposed to use when obtaining, retaining and reviewing surveillance data. This appears to be the first time any meaningful action has been taken by the Court.

The FISA Court has long been described as a secret panel which simply “rubber stamps” surveillance requests and continued use of Section 702 powers. This is despite the Court’s own recognition that minimal safeguarding procedures have been repeatedly ignored, searches have repeatedly violated the Constitution and government officials repeatedly lied to secure warrants and continue surveillance programmes.

Unlawful State Federal Collusion to Surveil and Secure Convictions

NSA whistleblower Edward Snowden exposed in 2013 that data of tens of millions of US and non-US citizens inside the country, including emails and phone calls, were being collected and analysed without due process or probable cause.

Furthermore, government officials have been routinely perjuring themselves when obtaining warrants and initiating criminal cases in order to avoid evidence and cases being tossed out by judges for being obtained illegally.

As Salon explained at the time of Snowden’s revelations:

“[A] secret branch of the DEA called the Special Operations Division [SOD] — so secret that nearly everything about it is classified, including the size of its budget and the location of its office — has been using the immense pools of data collected by the NSA, CIA, FBI and other intelligence agencies to go after American citizens for ordinary drug crimes.” 

“Law enforcement agencies, meanwhile, have been coached to conceal the existence of the program and the source of the information by creating what’s called a ‘parallel construction,’ a fake or misleading trail of evidence. So no one in the court system — not the defendant or the defense attorney, not even the prosecutor or the judge — can ever trace the case back to its true origins.”

The SOD was so secretive that “at least part of it was nicknamed the ‘dark side’,” Human Rights Watch explained in its 2018 report “Dark Side: Secret Origins of Evidence in US Criminal Cases”.

Ten months after Human Rights Watch published its report, the FISA court determined that FBI procedures used to warrantlessly search this database, along with its “minimization” procedures, were “not consistent with the requirements of the Fourth Amendment.” 

In other words, hundreds of thousands — at the very least — of FBI searches of the NSA’s Section 702 database were illegal.