Government Releases New Court Opinions Highlighting Further Abuse of Warrantless FISA Surveillance Program

The Office of the Director of National Intelligence (ODNI) today released two heavily redacted court opinions that address spying conducted by the FBI, NSA, and CIA under Section 702 of the Foreign Intelligence Surveillance Act (FISA). Issued by the secret Foreign Intelligence Surveillance Court (FISC), the opinions describe numerous recent violations of legal requirements and court-ordered rules intended to protect Americans’ privacy — including the use of Section 702 to surveil a sitting state court judge who “had complained to [the] FBI about alleged civil rights violations perpetrated by a municipal chief of police.”

These opinions also reveal multiple instances of FBI agents searching the agency’s enormous Section 702 databases for information about people who are not suspected of any wrongdoing. As the FISC described, FBI field offices repeatedly engaged in prohibited searches, including as part of criminal investigations without a foreign nexus, investigations into the Jan. 6, 2021 breach of the U.S. Capitol, and vetting of sources and Afghan refugees.

“These disturbing new revelations show how Section 702 surveillance, a spy program the government claims is focused on foreign adversaries, is routinely used against Americans, immigrants, and people who are not accused of any wrongdoing,” said Patrick Toomey, deputy director of the American Civil Liberties Union’s National Security Project. “The FBI continues to break the rules put in place to protect Americans, running illegal searches on public officials including a U.S. senator, and it’s long past time for Congress to step in. As Congress debates reauthorizing Section 702, these opinions make clear why fundamental reforms are urgently needed.”

Significantly, one of the opinions released today describes a completely new use of Section 702 surveillance by the NSA: to conduct routine, suspicionless searches of people overseas who are applying for immigration benefits or seeking to travel to the United States. As the FISC acknowledged, these suspicionless queries are unprecedented under Section 702, and this novel use of the spy program for immigration and travel purposes will impact the privacy of Americans who are in contact with people seeking to come to the United States. The NSA’s use of warrantless FISA surveillance to vet immigrants and travelers is a dramatic expansion of Section 702 never authorized by Congress.

One of the opinions was released today in response to a Freedom of Information Act (FOIA) lawsuit the ACLU filed in February 2023, and the other is the subject of a FOIA request the ACLU submitted in June 2023. Over the past two decades, the FISC has issued many secret legal opinions authorizing the U.S. government to conduct sweeping programs of electronic surveillance. The court’s opinions have a profound impact on Americans’ rights to privacy, free expression, and free association, and they often remain entirely hidden from public view for years — unless an organization like the ACLU sues.