Is FBI Surveillance Being Conducted Under Secret Law? PPSA Seeks Answers to Post-Section 215 FBI Surveillance

​The Project for Privacy and Surveillance Accountability recently filed a Freedom of Information Act (FOIA) request asking the FBI to explain how it conducts surveillance now that Congress has allowed three significant legal authorities to expire.
 
In March, Congress allowed the expiration of Section 215 of the Patriot Act, the “business records” provision of FISA that governed the warrantless surveillance of a wide range of personal information held by businesses. To review such sensitive records – ranging from online searches to video from home security cameras – all the FBI had to do was to assert the elastic standard of a national security interest. Two other authorities – the roving wiretaps provision to track potential terrorists from one device to another, and the lone wolf provision to track individuals suspected of terrorist activities – also expired.
 
“With the lapse of these authorizations, the FBI no longer has the authority to conduct this surveillance,” said Gene Schaerr, PPSA general counsel. “Does that mean that such surveillance for new cases will no longer take place? Does it mean that the FBI asserts that this form of surveillance can be justified under a different legal authority? If so, what is it? Or is the FBI just barreling ahead, with no legal basis?”
 
In its FOIA request, PPSA is specifically requesting all written communications from FBI agents, officers and employees regarding:
 

• The expiration of any of the required provisions

 

• The discontinuance or modification of any FBI practice of submitting applications to the Foreign Intelligence Surveillance Court

 

• The discontinuance or modification of any FBI surveillance practice previously authorized.

 
“For all its flaws, Section 215 at least provided a legal basis for the FBI gaining access to our interactions with business,” Schaerr said. “The American people deserve to know what authority, if any, the FBI now uses for these kinds of investigations.”
 
The PPSA filing comes on the heels of a letter with Demand Progress and nine other civil liberties organizations asking if the government is secretly contorting the law to justify dragnet surveillance.
 
In late July, a letter from Senators Mike Lee, Republican from Utah, and Patrick Leahy, Democrat from Vermont, asked Attorney General William Barr and Director of National Intelligence John Ratcliffe to clarify the government’s theory of surveillance after the expiration of Section 215 authority.
 
The two senators noted that some in the executive branch had previously asserted an “inherent right,” perhaps under Executive Order 12333, to conduct surveillance independent of any statutory authorization. The questions posed by PPSA are aimed to ascertain whether such claimed rights are being exercised by the government.
 
“For a year, surveillance hawks told us that it was a vital matter of national security that these three authorities be reauthorized,” Schaerr said. “They are now silent. This silence is a strong indication that the government was either wrong then, or that it has moved on to a new legal theory to justify its actions. If this is so, the American people and Congress deserve to know the legal basis on which this surveillance is now being predicated. Otherwise, to withhold from the American people such a major revision of policy would amount to secret law.”

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