The spokespersons of the intelligence community promise in hearings, when asked about multiplying reports of lawless surveillance of the American people, that they intend to adhere to a “culture of compliance.”
But compliance with what?
A glimpse into official thinking can be seen in internal documents recently released by the FBI that give guidance to agents searching the vast oceans of data swept up under the authority of the Foreign Intelligence Surveillance Act (FISA). It includes procedures for reviewing Americans’ communications collected without a warrant under Section 702, the authority devised for surveilling foreigners abroad. It details the ways in which agents can, under rules established by the secret FISA Court, search these records for evidence of a crime not relating to national security, even though the primary purpose Congress crafted FISA and Section 702 was to catch foreign terrorists and spies.
This workaround rests on the fact that with the global integration of communications, it is impossible to sweep up large amounts of communications without “incidentally” sweeping up the communications of Americans. The culture of compliance at the FBI is about compliance with its own internal rules. These documents demonstrate the extent to which queries about U.S. persons Section 702 data – performed more than 200,000 times last year alone – have become the FBI’s honeypot for domestic surveillance.
That is why 702 information has been used in investigating purely domestic crimes and investigations, from bribery to health care fraud – hardly matters of national security.
These documents show the extent to which the FBI has elaborate rules in place to sanitize the ways agents access this information to obtain Americans’ communications in a domestic criminal investigation. But you will search this document in vain for mention of the words “privacy,” “warrants,” and “Fourth Amendment.”
How’s that for an idea – a culture of compliance with the U.S. Constitution?