FBI Champions “Defensive” Searches of Americans

​The FBI explained to Charlie Savage of The New York Times why it used the name of Rep. Darin LaHood (R-IL) as a search term. The FBI says it was conducting a “defensive” investigation ostensibly to protect the congressman. Along the way, the bureau took no trouble to adhere to rules that would have excluded Rep. LaHood’s personal and irrelevant communications when delving into his data collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA).
 
In December, 2021, a government report first revealed that a Congressman’s name had been used in such a search without using minimization procedures to protect his privacy. That the subject of this surveillance was Rep. LaHood was dramatically revealed in a March hearing when the Illinois congressman said he believed his name had been used for the Section 702 query. Section 702 is an authority Congress authorized explicitly to surveil foreign actors in foreign settings who pose a threat to national security.
 
The FBI is generous with itself in how it treats the collection of Americans’ communications that are “incidentally” swept up in 702 data collection. With so much of global communications running through North America – and so many Americans in communication with foreigners – the private messages of American citizens and people on U.S. soil have a degree of exposure far beyond anything Congress imagined when it amended FISA with Section 702 in 2008.
 
This authority has since become a wide-open back door through which the FBI can surveil someone, then concoct a different predicate to follow up on the evidence it has seized. Years of experience with FBI misbehavior explains why Rep. LaHood, a former counterterrorism prosecutor, struck a newly confrontational tone in a recent hearing with FBI Director Christopher Wray.
 
“I want to make clear the FBI's inappropriate querying of a duly elected member of Congress is egregious and a violation not only that degrades the trust in FISA but is viewed as a threat to the separation of powers," LaHood said to Director Wray.
 
Now FBI backgrounders are telling The New York Times that the reason for the query was because the bureau believed Rep. LaHood was a target of a Chinese intelligence operation. FBI surveillance occurred at a time when LaHood, whose district includes soybean farmers and Caterpillar, was caught between President Trump’s tariffs imposed on Chinese goods and the dependence of his constituents on trade with China.
 
Thus, intelligence community apologists are now using “defensive investigation” as yet another reason why we cannot allow a warrant requirement to gum up the works. Matt Olsen, now an assistant attorney general, argued in Slate a few years ago that entering an American’s email address or phone number into the database “is not the initiation of a new surveillance or search protected by the Fourth Amendment and subject to the warrant requirement. It is the review of information that the agency has already obtained by lawfully targeting others and that now resides in its databases.”
 
This assertion is that these aren’t general warrants, prohibited by the Constitution, if the government already possesses your data. The founders added the Fourth Amendment to the Constitution to prevent general warrants like those of the British Crown. According to Olsen’s theory, if the king’s agents had thought to lock up every Bostonian’s private papers in a warehouse, it would have amounted to one, big legal search.
 
A hypothetical situation shows how far afield this is from the Fourth Amendment. Put aside that Rep. LaHood has a reputation for being an honest and decent fellow. Hypothetically, would the FBI have ignored incriminating information of a non-national security crime if it had been found in a congressman’s private messages? Consider that the secret FISA court revealed that Section 702 has already been used in health care fraud, bribery, and other cases having nothing to do with national security.
 
Now the FBI is peddling to The Times the notion that all is fair game if the purpose of the search is purely defensive. After all, they were merely trying to protect Rep. LaHood, right? But if that’s the case, why didn’t the FBI inform Rep. LaHood he was a target of the Chinese? Why did he have to intuit this from reading classified material years after the fact?
 
The reason is clear. The government always wants to retain the right to go after the subject of the search. That is why the intelligence community and its apologists want an exception for backdoor searches but have no interest in a consent requirement.
 
We hope Rep. LaHood keeps this in mind when he works with his colleagues to craft the strong reforms that, he said, must be the price of Section 702 reauthorization in this Congress.