A Department of Justice watchdog report shows that the FBI’s bulk collection of personal information goes far beyond Foreign Intelligence Surveillance Court-approved telephone metadata record-keeping, and includes “gigabytes” of internet communication data and other business records associated with individuals, including Americans, who are not the subject of criminal investigations.
The bureau is using the soon-to-be expiring Section 215 of the Patriot Act to collect material ranging from “hard copy productions of business ledgers and receipts to gigabytes of metadata and other electronic information,” according to the Department of Justice’s Office of Inspector General (OIG) in a report released Thursday.
“We note that the use of Section 215 authority continues to expand to reflect legislative, technological, and strategic changes,” the investigation concluding, noting that the FBI has “made strategic use” of those changes by “broadening the scope of materials sought in application.”
Detailing how the bureau’s collection efforts amount to a dragnet, the OIG notes that, “Section 215 authority is not limited to requesting information related to the known subjects of specific underlying investigation,” but that the authority is used to collect records on “groups comprised of unknown members” in order to ”obtain information in bulk concerning persons who are not the subjects of or associated with an authorized FBI investigation.”
In other, less formal terms, it can be used for fishing expeditions. The reality prompted the IG to call for the “expanded uses” of Section 215 to be subject to “continued significant oversight.”
The heavily-redacted report, which is the third of its kind dating back to 2008, traces the bureau’s effort to implement “minimization procedures” to respect the privacy rights of American citizens whose information has been swept up into the bureau’s dragnet War on Terror surveillance activities.
Federal law required the bureau to set up those procedures in 2006, but the OIG found that the Attorney General didn’t authorize them until March 2013—only months before former NSA contractor Edward Snowden revealed the existence of the NSA’s use of Section 215 to collect most Americans’ phone records.
“We do not believe it should have taken 7 years for the Department to develop minimization procedures,” the inspector general noted, implying that the FBI might have been systematically breaking the law for nearly a decade with impunity.
The report’s findings also touch on the FBI’s legal rationale for bulk collection, echoing a justification made by the National Security Agency—one that was this month struck down by the Second Circuit Court of Appeals.
“The Department relied on the legal theory that all of the data collected is relevant as a while because it is necessary to create a data archive,” which can then be used to retroactively target specific records related to a counter-terror investigation.
“The Department acknowledged that the data includes records of US persons who were not the subject of or associated with subjects of authorized investigation,” the OIG adds.
The release of the report comes at a critical time for the debate over NSA surveillance. Authorities bestowed to US spooks by Section 215 are set to expire on June 1. The Senate is currently working on two different measures that would extend the powers.
One measure, preferred by Senate Minority Leader Mitch McConnell would reauthorize Section 215 without any reforms whatsoever.
A second measure, the USA Freedom Act, which overwhelmingly passed the House last week, would reform the NSA’s bulk telephony metadata collection program, and add new restrictions to the type of information that can be collected in bulk. The legislation would also, however, extend Section 215 of the Patriot Act through 2019.
Both bills are expected to receive a vote in the Senate on Saturday.
