# FISA Court Opinion (2018)

In 2018, a ground-breaking ruling by FISC stated that the FBI’s minimization procedures and batch queries on U.S. citizens violated the FBI’s own minimization procedures and the Fourth Amendment.

Yet again, Ms. Jeffress joined the court as an amicus curiae – she forewarned the court about this issue in 2015. The court found several problems with the FBI’s minimization procedures. The first problem was that the FBI used “exemptions from otherwise applicable requirements for lawful training...and oversight of an agency’s [the FBI’s] personnel or systems.” These exemptions proved to be “unreasonably broad,” and violated both the Fourth Amendment and FISA’s definition of a minimization procedure. The next issue was that the FBI would keep records of their queries, but the records “would not indicate whether the query term used was associated with a United States person.” This directly violated a FISA statute that required agencies to “include a technical procedure whereby a record is kept of each United States person query term used for a query” (FISC 2018, 5).

The final issue found with the FBI’s minimization procedures was that the agency “did not require FBI personnel to document the basis for finding that each United States-person query term satisfied the relevant standard.” The court said that the failure to document the basis for the FBI’s queries was “unreasonable” under FISA’s minimization procedures and “possibly” the Fourth Amendment (5).

It is important to mention the number of queries the FBI makes on U.S. persons. In 2017, the National Center for Counterterrorism, CIA, and NSA collectively ran 7500 searches on U.S. persons. In the same period, the FBI ran 3.1 million queries on one system alone, although, due to the FBI’s minimization procedures, it is impossible to know how many of those queries were targeting U.S. citizens. The FBI is one of few U.S. organizations that have access to raw, unminimized data, even if they only receive a “small percentage of the total information acquired under Section 702” (66).

Further, the document stated that the government reported “a large number of FBI queries that were not reasonably likely to return foreign-intelligence information or evidence of crime” (68). The court cited five separate instances of the FBI’s bulk searching and non-compliance with its own minimization procedures, statutes, and the Fourth Amendment. The government used human error as the reason for these violations, claiming several of the searches were accidental, for improper personal purposes, or due to a lack of understanding of the FBI’s own minimization procedures (71).

# FBI Batch Queries

Another issue the court discussed in its 2018 certification were the “batch queries” that the FBI conducted. The FBI’s own minimization procedure dictates that “each query...must be reasonably likely to retrieve foreign intelligence information...or evidence of a crime.” Despite this, the government maintained that “an aggregation of individual queries can satisfy the querying standard, even if each individual query in isolation would not be reasonably likely to return foreign-intelligence information or evidence of crime” (78).

This gives significant insight into the FBI’s querying practices up to 2018: if the FBI suspects that an employee of a company intends to commit a crime, but the FBI does not know who that person is, the agency can collect information on all of the company’s employees.

It is important to note that these loopholes in the FBI’s minimizations procedures, which in turn violated the Fourth Amendment, were brought to the court by Ms. Jeffress in 2015 and the court failed to act upon her recommendations. In addition to showing how Section 702 data has been misused by the FBI, the document also shows a failure by the court to properly oversee mass surveillance programs.

# Sources

  1. Foreign Intelligence Surveillance Court (FISC). Office of the Director of National Intelligence. Section 702 2018 Certification: Memorandum Opinion and Order. Washington, D.C., 2018. https://www.intel.gov/assets/documents/702%20Documents/declassified/2018_Cert_FISC_Opin_18Oct18.pdf (opens new window) (Archive).