https://www.techdirt.com/2023/11/21/fbi-director-admits-agency-rarely-has-probable-cause-when-it-performs-backdoor-searches-of-nsa-collections/ [ ] Techdirt. [ ] * Sign In * Register * Preferences Techdirt [ ] * TechDirt * GreenHouse * Free Speech * Error 402 * Deals * Jobs * Support Techdirt [podcast-ti] Daily Deal: The Advanced Cyber Security Bundle Privacy Activist Files Complaint Against The EU Commission Over Its Highly Targeted (Misleading) Ads About CSAM Scanning FBI Director Admits Agency Rarely Has Probable Cause When It Performs Backdoor Searches Of NSA Collections [legal-issu] Legal Issues from the just-laying-it-right-out-there-like-it-doesn't-mean-anything dept Tue, Nov 21st 2023 10:43am - Tim Cushing After years of continuous, unrepentant abuse of surveillance powers, the FBI is facing the real possibility of seeing Section 702 curtailed, if not scuttled entirely. Section 702 allows the NSA to gather foreign communications in bulk. The FBI benefits from this collection by being allowed to perform "backdoor" searches of NSA collections to obtain communications originating from US citizens and residents. There are rules to follow, of course. But the FBI has shown little interest in adhering to these rules, just as much as the NSA has shown little interest in curtailing the amount of US persons' communications "incidentally" collected by its dragnet. In recent months, several Republicans have argued against a clean re-authorization of Section 702 powers, citing the FBI's backdoor snooping on Trump administration figures, as well as certain Republicans who have outlasted Trump's four-year stint as the supposed leader of the free world. On top of this opposition, there's something more bipartisan. Every time surveillance powers are up for renewal, Senator Ron Wyden and other privacy focused legislators have offered up comprehensive surveillance reform packages. The latest effort by Wyden would create a warrant requirement for these backdoor searches by the FBI. Senate leaders tried to dodge this by slapping a clean re-auth rider on a "must pass" budget bill, but legislators found a way to keep the government funded for a little bit longer while they continue to argue over who gets what and how much of it. Faced with the real possibility of seeing this surveillance authority heavily altered, if not discarded completely, the FBI is making its case for a year-end approval of status quo continuation. But it's making some really bad arguments. FBI director Chris Wray took time out his busy "everything is going dark" schedule to speak to House representatives on behalf of his agency and its desire to continue to abuse this access to NSA collections. Unfortunately for Wray, the statements he made inadvertently exposed the lack of legal basis for FBI access to communications collected by the NSA. First though, he pretended he cared whether or not Americans were subject to unconstitutional spying, as Jessica Hardcastle reports for The Register. He did address the FBI's earlier abuses of Section 702 to spy on protesters, campaign donors, and even elected officials. "To be sure, no one more deeply shares Members' concerns regarding past FBI compliance violations related to FISA, including the rules for querying Section 702 collection using US person identifiers, than I do," Wray said. That can't possibly be true. If it were, Wray's concern would surpass the concern expressed by any number of rights and privacy groups, as well as legislators who have worked for years to curtail this abuse, only to see their reform efforts shot down by the lawmakers who care even less about the FBI's violations than the FBI itself. If this statement were even remotely true, Wray wouldn't be trying to talk legislators into dumping Wyden's reform bill, much less advocating for continued warrantless access to US persons' communications. Wray's argument for continued warrantless access was somehow even worse than his pretending to care about surveillance abuses. Somehow, the FBI director managed to blurt out what everyone was already thinking: that the FBI needs this backdoor access because it almost never has the probable cause to support the search warrant normally needed to access the content of US persons' communications. "A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval; or because, when the standard could be met, it would be so only after the expenditure of scarce resources, the submission and review of a lengthy legal filing, and the passage of significant time -- which, in the world of rapidly evolving threats, the government often does not have," Wray said. Holy shit. He just flat-out admitted it: a majority of FBI searches of US persons' communications via Section 702 are unsupported by probable cause. That alone should be enough to, if nothing else, forbid the FBI from using this back door. This is on top of the years of continuous abuse of these surveillance powers by the FBI -- something so egregious even the FISA court has considered shutting down the FBI's access. And that's with the FISA court's unwavering ability to both forgive and forget the FBI's constant trespasses. If Wray is to be believed -- and there's no reason not to, since he's arguing in self-interest -- probable cause either doesn't exist or takes too long. This is the same guy who, moments earlier, claimed he was the most concerned about FBI abuse of this surveillance power. Yet, moments later, he's telling legislators his agency is incapable of complying with the Fourth Amendment, or simply just unwilling to do so. While I'm less than thrilled certain Republicans have decided Section 702 is bad only when it hurts them, I'm happy to see this power face the real possibility of meaningful reform, if not actual extinction. It's been a long time coming. Unfortunately, both the FBI and the current administration are united in their desire to keep this executive authority intact. Both Wray and the Biden administration call the warrant requirement a "red line." So, even if the House decides it needs to go (for mostly political reasons) and/or Wyden's reform bill lands on the President's desk, odds are the FBI will get its wish: warrantless access to domestic communications for the foreseeable future. Filed Under: 4th amendment, backdoor searches, chris wray, fbi, section 702, warrantless search, warrants 6 CommentsLeave a Comment If you liked this post, you may also be interested in... * WV Supreme Court: Omnipresent Concern Like 'Officer Safety' Can't Be Used To Excuse Constitutional Violations * Indiana's Top Court Adds More Due Process To Forfeiture, Says A Jury Needs To Be Part Of The Process * Senate Undercuts Section 702 Reform Efforts By Stapling Blanket Approval To A Must-Pass Budget Bill * Appeals Court: Bad Cloud Data Warrant Good Enough To Jail Someone For Crime Cops Weren't Even Investigating * Court: You Can't Add A Lie To An Already-Executed Warrant And Expect Everything To Be Constitutional * * * * * * Rate this comment as insightful Rate this comment as funny You have rated this comment as insightful You have rated this comment as funny Flag this comment as abusive/trolling/spam You have flagged this comment The first word has already been claimed The last word has already been claimed Lightbulb icon Laughing icon Flag icon Lightbulb icon Laughing icon Comments on "FBI Director Admits Agency Rarely Has Probable Cause When It Performs Backdoor Searches Of NSA Collections" Subscribe: RSS Leave a comment * Filter comments in by Time * Filter comments as Threaded * Filter only comments rated Insightful * Filter only comments rated funny LOL * Filter only comments that are Unread 6 Comments Collapse all replies [bf20c1fb78]Anonymous Coward says: November 21, 2023 at 11:13 am Wray meant: Of course, we have probable cause. We always have probable cause for everything we do-well, mostly anyway. Well, I mean, we could maybe get probable cause, but it's too complicated and it takes too long. You see, by the time we find an excuse that might double for probable cause, so much time will have passed, that we will all have died of old age. And that's assuming we can really find an excuse in the first place. Reply View in chronology Make this comment the first word Make this comment the last word [37625678da]Anonymous Coward says: November 21, 2023 at 11:15 am I shouldn't be, but I'm still somehow surprised every time cops are asked why they can't follow the law/constitution and their answer is "It's haaaaaarrrrrrd". Maybe we need to appropriate the language that gets used to describe the youth. Nobody wants to work anymore! These entitled cops want handouts instead of doing their job! Collapse replies (4) Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [ffa8a0c451]Anonymous Coward says: November 21, 2023 at 11:55 am Re: There is also the typical "it's a temporary law, if we respect it now, it won't still be there when we'll be used to it", or the more popular "Has it passed? Really? So what now?" Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [5fab492f9f]Anonymous Coward says: November 21, 2023 at 11:58 am Re: These entitled cops want handouts instead of doing their job! It's worse than that, they want the right to ignore everybody else's rights. Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [547dfe8a7d]Anonymous Coward says: November 21, 2023 at 12:45 pm Re: There's an interesting analogy. Cops: It's haaarrd! Nerds: It's mathematically impossible. That's basically the same thing, right? /s Reply View in chronology Make this comment the first word Make this comment the last word Threaded [2] [3c5721f42d]Anonymous Coward says: November 21, 2023 at 2:02 pm Re: it's too hard! I shouldn't be, but I'm still somehow surprised every time cops are asked why they can't follow the law/constitution and their answer is "It's haaaaaarrrrrrd". maybe we should draw it in crayon so they can understand it! Reply View in chronology Make this comment the first word Make this comment the last word --------------------------------------------------------------------- says: Add Your Comment Cancel reply Your email address will not be published. Required fields are marked * Have a Techdirt Account? Sign in now. Want one? Register here Name [ ] Email [ ] [ ]Subscribe to the Techdirt Daily newsletter URL [ ] Subject [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] Comment * [ ] Comment Options: (*)Use markdown. ( )Use plain text. 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