Did the FBI Just Get Caught Lying to Congress About the Efficacy of “Backdoor Searches”?

​As Congress debated Section 702 – the authority within the Foreign Intelligence Surveillance Act that allows U.S. intelligence agencies to surveil foreign threats located abroad – the FBI solemnly informed lawmakers that the use of Section 702 is essential to allowing the bureau to catch domestic terror plots. In fact, the FBI claimed Section 702 was used to derail a “potentially imminent terrorist attack” against critical U.S. infrastructure.
 
FBI Director Christopher Wray doubled down on this point in a speech on April 9, saying that “only by querying that U.S. person’s identifiers in our 702 collection did we find important intelligence on the seriousness and urgency of the threat.” FBI officials repeated that claim in an interview with Politico.
 
These are apparent references to Brandon Clint Russell, a neo-Nazi founder of the self-styled “Atomwaffen Division” – charged with conspiring to attack electrical substations across Maryland. Yet, contrary to the agency’s repeated claims that their review of Section 702 data was essential to identifying him and the risk he posed, the FBI’s affidavit filed in the criminal case does not even mention Russell’s alleged communications with foreign targets of Section 702. And the absence of such information indicates that the FBI knew enough about him to seek a warrant without using its Section 702 database as a surveillance tool. 
 
“There they go again,” said Gene Schaerr, PPSA general counsel. “It is rank dishonesty to tell Congress one thing and the courts another.”
 
Critics of Section 702 have long criticized the use of this authority as a way for the government to conduct “backdoor searches.” The FBI rejects that term but celebrates the use of Section 702 data to do precisely that, to use the global database as a predicate to develop domestic leads. These queries of Americans’ communications allow the government to develop investigative leads pulled out of global intercepts. It is a backdoor search because defendants often never learn about the origin of their case in court. In this case, however, there seemed to be abundant independent evidence to investigate Russell.
 
“The filing suggests that even if the FBI performed a backdoor search, it was inconsequential,” Schaerr said. “The court filing indicates that the government had enough information to investigate – read the Wikipedia page of Brandon Russell – so why didn’t they just get a warrant as required by the Fourth Amendment?”
 
And more important than the FBI’s failure to seek a warrant in this one case, this episode unfortunately illustrates the FBI’s willingness to lie to Congress – and by extension to the American people – to get the legislation they want. The FBI shouldn’t be surprised that no one in Congress takes their “sky is falling” cries seriously the next time around.