FBI improperly searched data on Jan. 6 suspects, BLM defendants

Officials at the FBI improperly searched a foreign intelligence database as they investigated suspects in the Jan. 6, 2021 Capitol riots and more than 100 people arrested in the aftermath of the murder of George Floyd in June 2020, according declassified court opinions released Friday by the Office of the Director of National Intelligence (ODNI).  

One FBI analyst also looked up information on more than 19,000 donors to a congressional candidate whose campaign was, in the view of the analyst, a possible "target of foreign influence," but a subsequent review found only eight of the individuals had potential foreign links, according to the documents. (Officials who briefed reporters on Friday said the candidate, who was running against an incumbent, was ultimately not elected to Congress.)

All of the incidents took place before a range of internal changes were instituted by the FBI beginning in summer of 2021.

"As a result, these compliance incidents do not reflect FBI's querying practices subsequent to the full deployment of the remedial measures," said Rebecca Richards, head of ODNI's Office of Civil Liberties, Privacy and Transparency.

Richards said the FBI had made "substantial reforms" to its query activities under Section 702 for the Foreign Intelligence Surveillance Act, legislation that allows for electronic spying on foreign targets. The 702 database, which intelligence and law enforcement officials can search, can include Americans' data if they are in contact with foreign surveillance targets.

"We're not trying to hide from this stuff, but this type of noncompliance is unacceptable," a senior FBI official said. "And that's why we put these reforms in place to stop that from happening in the future."

Among the changes made to the querying process is a new requirement that analysts include a written justification for running a search involving a U.S. person, rather than choosing an option from a dropdown menu.

"This remedial measure is important because it helps users engage better with the [query] standard and explain in their own words why it meets the requirements," a senior Justice Department official said, adding that extra training and guidelines issued by the government had helped "reduce misunderstandings" about the process.

Analysts now also have to "opt in" to searches of collected foreign intelligence; a prior default setting caused "inadvertent queries" of that data.

"We're seen a significant impact, in our view, from that change," the DOJ official said.

The public release of the significantly redacted court opinions comes as debate in Congress intensifies over the reauthorization of Section 702, which expires at the end of this year. National security officials have argued the tool is essential in counterterrorism, cybersecurity and transnational crime cases. But privacy advocates and some lawmakers have called for substantial reforms to the law.

"Today's disclosures underscore the need for Congress to rein in the FBI's egregious abuses of this law, including warrantless searches using the names of people who donated to a congressional candidate," said Patrick Toomey, deputy director of ACLU's National Security Project. "These unlawful searches undermine our core constitutional rights and threaten the bedrock of our democracy."

Connecticut Democrat Rep. Jim Himes, the ranking member of the House Intelligence Committee, said the FBI's efforts had already reduced compliance incidents, but that it was "crystal clear from our Committee's oversight that additional changes are required to ensure that the FBI, and other agencies, are faithful stewards of this powerful and irreplaceable national security tool."

"I remain committed to working with Chairman Turner and the rest of the Congress to protect Americans' constitutional rights while also preserving the capabilities we need to protect our nation," Himes said.

"If Section 702 is to be reauthorized, there must be statutory reforms to ensure that the checks and balances are in place to put an end to these abuses," said Democratic Senator Ron Wyden of Oregon, who sits on the Senate Intelligence Committee.

Officials said Friday that additional FBI compliance reports would be released "soon," given the "high level of attention" from Congress and the public in the course of the reauthorization debate.

The Justice Department official said the "vast majority" of non-compliance incidents had stemmed from "a good-faith misunderstanding."

"Accountability is levied where there is actual misconduct," she said. "But again, that, in practice, is very rare."

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