In her recent article, “Broad Warrantless Surveillance Threatens to Undermine the Criminal Justice System,” Sarah St.Vincent writes that Attorney General Jeff Sessions’ recent comments regarding more rigorous enforcement of drug offenses heightens the concern that the FBI may improperly use information gathered on Americans under Section 702 of FISA to further low-level drug prosecutions. While Ms. St.Vincent is right to scrutinize how the FBI balances its law enforcement and foreign intelligence mandates with the data it collects on U.S. persons under this provision, I believe that her concern regarding drug offenses is largely unfounded for the following reasons:
First, Section 702 targets non-U.S. persons related to foreign intelligence located abroad. While the NSA collects incidental communications of U.S. persons as a part of this effort, it would only be a subset of the collection. Then, the data passed on to the FBI is a further subset of this collection. The FBI has advised the Foreign Intelligence Surveillance Court (FISC) and the Privacy and Civil Liberties Oversight Board that 702 data rarely yield information on criminal activity of U.S. persons generally. Wholly domestic drug crimes unrelated to foreign terrorist or intelligence targets are even further removed from the targets in this data set, making it a pool that would be unlikely to yield information on such crimes.
In addition, the FBI makes a distinction between criminal and national security investigations: the former do not have clearance and access to FISA-related information, while most of the latter do. Since 702 information is included in a “federated” FBI database along with other legally acquired data, an agent focused on U.S. crime cannot conduct an independent 702 query. Rather, a query might return a 702 “hit” that s/he would not be allowed to look at (which the agent would not know prior to query). In order to see this content, the agent would be required to submit a request to someone cleared to run a FISA query, obtain supervisory authorization, and also provide the basis for believing that such a query would meet the 702 minimization standard, which is that the query would reasonably return evidence of a crime. Since the 702 data is already unlikely to produce this information from the get-go, such a justification would be difficult to provide without additional supporting information that the subject was engaging in criminal activity with international targets.
Lastly, FBI national security agents (those who conduct counterterrorism and counterintelligence investigations) — though they can see the content of 702 hits without further approval — must meet this same query justification and also use the same federated database, which makes it extremely unlikely they would try to “fish” for evidence of drug-related crimes without any substantiation. (This kind of fishing would also be somewhat against interest, since criminal prosecutions may result in exposure of methods, sources, and contacts that need to remain confidential for national security reasons.) All queries, whether criminal or foreign intelligence-related, are recorded, can be tracked to the individual agent conducting them, and routinely audited nationwide. Since queries not meeting the 702-minimization standards would be considered “unauthorized” and grounds for further internal investigation (and possible punishment), this is a very high-risk/low-reward scenario that any agent would be unwise to undertake. It is not surprising that, as the FBI advised to the FISC in 2015, no 702 information has constituted the basis for a non-national security-related criminal prosecution.
In short, the Attorney General’s statements certainly represent a potential shift in priorities for the Justice Department. However, for the reasons above, this shift would not result in FBI agents accessing or (ab)using 702 data in the way Ms. St.Vincent suggests.
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