The controversy over warrantless wiretaps of US citizens by security agencies is refusing to die down and a leaked email reveals that FBI deputy director Paul Abbate has encouraged agents to use such tools at their disposal.Leaked FBI Email Reveals Agents Being ‘Encroached’ to Use Warrantless Wiretaps

FISA was amended by the post-9/11 PATRIOT Act, essentially giving the intelligence community the ability to spy on whoever they want, whenever they want, without a warrant. The 4th Amendment protects Americans from illegal search and seizure, requiring the government to receive a warrant or have probable cause to suspect a crime. However, because FISA lets the intelligence agencies scoop up any and all conversations between foreigners and US citizens without a warrant, it brazenly ignores the 4th Amendment (illegally but without consequences).

The FBI alone has been caught using the FISA 702 database to illegally search the communications of US citizens literally hundreds of thousands of times and it has faced absolutely zero consequences for the continued obvious abuses of human rights.

For the first time since FISA Section 702 was passed, the House of Representatives almost forced a warrant requirement into the bill that reauthorized Section 702. However, the intelligence community won out somehow, despite floods of calls for the requirement from US constituents. The Speaker of the House broke the tie vote to reauthorize FISA 702 without major changes even though he was one of the main proponents of the warrant requirement.

Leaked Email Shows Top FBI Official Encouraging Agents to Use Section 702

The leaked email that Wired obtained indeed shows how the US security establishment does not seem to care about the privacy of US citizens in the name of national security.

Abbate’s mail said, “To continue to demonstrate why tools like this are essential to our mission, we need to use them, while also holding ourselves accountable for doing so properly and in compliance with legal requirements.”

He however also called upon agents to work within the ambit of law and the email went on to add, “I urge everyone to continue to look for ways to appropriately use US person queries to advance the mission, with the added confidence that this new pre-approval requirement will help ensure that those queries are fully compliant with the law.”

There have been immediate reactions to the report and US representative Zoe Lofgren, a Democrat from California said, “The deputy director’s email seems to show that the FBI is actively pushing for more surveillance of Americans, not out of necessity but as a default.”

Lofgren added, “This directly contradicts earlier assertions from the FBI during the debate over Section 702’s reauthorization.”

FBI Responds to Wired’s Report

FBI spokesperson Susan McKee provided a statement from the bureau that claims that Wired’s reporting “alleged that that the FBI instructed its employees to violate the law or FBI policies.”

To be sure, Abbate’s mail at least technically calls upon agents to be in compliance with the legal requirements and neither the mail nor Wired’s reporting seems to suggest that the FBI is instructing employees to violate the law.

However, the law in question here is itself controversial. The US intelligence community has been forced to admit in front of Congress that it regularly abuses FISA to the tune of over 278,000 illegal searches in just 2020 and 2021. For whatever reason (likely the tremendous influence the intelligence community has over Congress), nothing has been done about these abuses.

In its report, the Congressional Progressive Caucus said that while “FISA is intended to authorize federal agencies to gather information from foreigners’ communications, the government admits it is using the law to search Americans’ private communications — including internet activity, phone records, and texts — without a warrant.” Again, according to the Constitution, this is undoubtedly illegal. The FBI clearly knows it is too but it continues to abuse FISA 702 nonetheless.

Many pundits and privacy-focused Congressmen have strongly criticized FISA 702, arguing that it is an obvious violation of the Constitution, specifically the 4th Amendment.

“These searches unjustly targeted individuals, including Members of Congress, 141 Black Lives Matter protesters, 19,000 donors to a congressional campaign, a local political party, tens of thousands of people involved in “civil unrest,” visitors to FBI offices, and individuals based solely on their race,” said the report.

Unfortunately for those hoping for FISA 702 to be repealed, the most recent reauthorization bill included text that forced a warrant requirement for spying on US Congress Members, but not regular US citizens. Given that the intelligence community has already used Section 702 to spy on over 140 members of Congress without warrants, politicians had good reason to strike down the law. However, now that their own data is no longer at stake, they are much less likely to care enough to fight the intelligence community to kill Section 702.

The National Security Versus Privacy Debate

Meanwhile, the debate boils down to striking the right balance between national security and the privacy of citizens.

Through active surveillance, governments can track down terrorists, white-collar criminals, as well as foreign agents. However, when the same surveillance is used against its law-abiding citizens, political adversaries, and friendly countries, it can become quite problematic.

It turns out that the government doesn’t even need to use its uncouth FISA powers or any kind of active surveillance to spy on its citizens. Last year, the Office of the Director of National Intelligence published a report that showed American intelligence agencies used data brokers to buy the private data of Americans, a loophole that avoids the 4th Amendment completely. Nevertheless, Section 702 gives the intelligence community unmatched power to spy on almost anyone they want so they aren’t likely to give it up without a fight.

The extent of warrantless wiretapping and analysis of people and groups against whom these are being used frequently seems to suggest that the law is not only limited to protecting national security but is also a government overreach leading to a breach of privacy of ordinary citizens.