In late April of 2022, the Office of the Director of National Intelligence (ODNI) released its Annual Statistical Transparency Report Regarding the Intelligence Community’s Use of National Security Surveillance Authorities – Calendar Year 2021. The report indicated that the FBI had conducted as many as 3.4 million warrantless searches of Americans’ data in 2021. This figure represents a substantial increase from the prior 12 months, during which the FBI made approximately 1.3 million of the same kind of searches.
The rise in warrantless searches is cause for concern because information obtained in a warrantless search can easily be used to initiate an investigation or prosecute a person for a federal crime.
Under the Fourth Amendment to the U.S. Constitution, law enforcement agencies must obtain a warrant before searching your home, office, car, or person. While there are exceptions to the search warrant requirement, in most cases, law enforcement agents must demonstrate to a judge that they have probable cause to believe a crime was committed or that they will find evidence of criminal activity before they are authorized to conduct a search.
The United States Supreme Court has ruled that a search warrant is required whenever a person has a “legitimate expectation of privacy” in the thing or place to be searched. The Court adopted a two-part test to identify a person’s legitimate expectation of privacy.
The 3.4 million warrantless searches in question were conducted under Section 702 of the Foreign Intelligence Surveillance Act of 1978, also known as FISA. FISA authorizes the National Security Agency to collect millions of electronic communications every year.
FISA was originally passed to protect American national security interests. Section 702 of FISA authorized warrantless searches of (1) non-U.S. persons, (2) who are reasonably believed to be outside of the U.S., (3) to acquire foreign intelligence information. Under Section 702, a warrantless search should only be authorized when all three requirements are met.
The FBI claims that these warrantless searches are authorized because the targets of the surveillance are foreign nationals who are overseas. However, in the course of conducting a warrantless search under FISA, massive amounts of Americans’ communications are “incidentally” collected in the process.
Congress recognized that the inadvertent collection of electronic data about Americans without a warrant was inevitable and tried to protect Americans’ constitutional rights by requiring that the government “minimize” the retention, use, and sharing of information about Americans that was collected under Section 702. However, the FBI routinely uses this data, which includes records of phone calls, emails, and text messages, in domestic criminal investigations. This practice is commonly known as a “back door search.”
When Section 702 was up for renewal in 2017, civil liberties activists pushed to end the practice of back-door searches. Ultimately, Congress required that the FBI obtain a warrant in a small subset of cases of criminal investigations that do not relate to national security but that had reached a certain stage of the investigation, and only after the query was conducted. However, the 2019 ODNI report reveals that the FBI has failed to comply with this requirement in virtually every relevant case.
Now, with Section 702 set to expire in 2023, some Congressional representatives are trying to address the issue. Congressmen Jim Jordan and Michael Turner have requested that the FBI provide additional information about the report, including a full accounting of the U.S.-person queries that were conducted in 2021 and the number of investigations that were initiated by the FBI as a result of these searches. Specifically, they asked for information about why the inquiries were found to be compliant with the Section 702 querying procedures and the total number of U.S. citizens and businesses that were identified in these searches. The lawmakers also asked that the FBI provide a detailed accounting of every time it has accessed or used information obtained in a Section 702 search for evidence of a crime unrelated to an issue of national security.
While the scope of the FBI’s warrantless searches is concerning, some people downplay its significance, noting that the 2022 report is the first time the ODNI has published the number of searches performed under FISA. They claim that a FISA search can only be conducted when the query is reasonably likely to retrieve foreign intelligence information. They also contend that the FBI’s warrantless search queries are over-reported because the report includes queries, as opposed to the number of individuals who are being investigated and that a single person may be associated with multiple queries.
While there might be a plausible argument that the number of FISA queries is over-reported, the fact that the FBI is conducting millions of warrantless searches of Americans’ data is still cause for concern. Issues of illegal search and seizure are common in federal criminal cases, especially those involving allegations of white-collar crimes.
If you believe you are the target of an investigation by the FBI or another law enforcement agency, you must act quickly to protect yourself. Do not speak to law enforcement agents other than to tell them that you are asserting your right to remain silent and that you want to speak to an attorney. Then contact Hope Lefeber.
Ms. Lefeber is a fierce and tenacious defender of her client’s rights who has extensive experience practicing law in federal court and a deep and thorough knowledge of federal criminal law.
Ms. Lefeber has been defending people accused of crimes in federal court for more than 30 years. Put her experience and expertise to work for you by calling Ms. Lefeber today.