“Deliberate” decisions were made by the FBI on several occasions to allow private contractors “improper access” into NSA databases, the court said. The issue of sharing federal data with third parties was a practice first unearthed by Anonymous activist Barrett Brown. Similarly, Brown showed the Justice Department guided private intelligence firms like Stratfor for their espionage operations of Occupy Wall Street demonstrators.
"I thought that the FBI’s minimization procedures are not consistent with the purpose of Section 702 or the Fourteenth Amendment because specifically they do not provide sufficient safeguards to the US person information that is incidentally collected in the 702 – Section 702 program," said Amy Jefferies, a privacy advocate who reviewed the FBI’s practices, told the FISC in April.
Before getting fired from the FBI, then-Director James Comey told Congress in April all information used by the bureau was “lawfully collected” and “carefully overseen and checked.”
According to United States Code Section 10, “each agency having access to ‘raw,’ or unminimized, information obtained under section 702 is governed by its own set of minimization procedures in its handling of Section 702 information.”
The privacy advocate reviewed privacy-protecting minimization protocols of intelligence agencies and was satisfied with NSA and CIA minimization practices, but found fault with the FBI.
FBI processes “allow virtually unrestricted querying of the Section 702 data in a way that NSA and CIA have restrained it through their procedures,” Jefferies said.
The problem at stake is not the data collected under 702, but rather how it is later accessed. The NSA and CIA require a written statement indicating how the search will produce foreign intelligence information, “and that really justifies the intrusion on US person information that the queries implicate,” she said.
The FBI, by contrast, lets agents access to the data “for any legitimate law enforcement purpose,” but does not mandate that that the search be related to national security, which is the reason for collecting 702 data.
What’s more, the FBI “does not distinguish between US and non-US persons in querying its databases,” she said.
There is “no limitation on what type of matter can be the subject of a query,” she warned.
As a law enforcement body, the FBI deals with evidence, unlike its counterparts the CIA and NSA, which traffic in intelligence. As such, the FBI may have overstepped its bounds because “there is no finding that this incidental collection” during the search of raw FISA information “is such evidence,” Jefferies asserts.
The extent of the FBI’s legal violations enumerated in the April 2017 FISC transcript may only be the tip of a much bigger iceberg. Due to the FBI’s “disregard” of minimization rules, “the Court is nonetheless concerned about … whether the FBI is engaging in similar disclosures of raw Section 702 information that have not been reported.”