According a U.S. Department of Justice (DOJ) report released today on the “FBI’s Use of Section 215 Orders for Business Records in 2006,” the United States Foreign Intelligence Surveillance Court (FISA Court) twice refused to authorize Section 215 requests by the FBI “based on concerns that the investigation was premised on protected First Amendment activity, and the FBI subsequently issued [National Security Letters] NSLs to obtain information” about American citizens built on the same premise rejected by the Court.
Under Section 215 of the U.S. Patriot Act, the FBI is authorized to apply to the FISA Court to review applications for warrants related to national security investigations.
Critics of the FISA Court have noted that the court effectively acts as a rubber stamp only rejecting .03 percent of all government surveillance requests, according to the Wall Street Journal.
In emails between the DOJ's Office of Intelligence Policy and Review (OIPR) and FBI’s National Security Law Branch, it is reported that the FISA Court decided that “the facts were too ‘thin’ and that this request implicated the targets First Amendment rights.”
The report cites a former counsel for intelligence policy who stated the OIPR should have subsequently examined the FBI’s underlying investigation after the FISA Court rejected the Section 215 request but that it was stretched too thin to “serve such an oversight role.”
An internal FBI audit in 2007 found that the “bureau potentially violated the law or agency rules more than 1,000 times while collecting data about domestic phone calls, e-mails and financial transactions in recent years,” according to The Washington Post.
It is deeply troublesome that the FBI would pursue national security investigations of American citizens “premised on protected First Amendment activity.” It is even more disconcerting that the FBI would use NSLs to obtain such information after the FISA Court refused to authorize a warrant, given the Court’s near 100 percent approval of such requests.
The DOJ’s OIPR lack of ability to examine the FBI’s underlying investigation at the time of the request due stretched resources also raises serious questions about how well the Office is able to protect the civil liberties of Americans.
The DOJ’s Office of the Inspector General report only labels such possible FBI violations of the law as “noteworthy” cases. The report does not provide any substantive recommendations to address these possible FBI abuses – unless such suggestions were made in one of the heavily redacted sections.
 U.S. Department of Justice Office of the Inspector General “A Review of the FBI’s Use of Section 215 Orders for Business Records in 2006 (U),” 2014. Report was requested by Congress via the USA PATRIOT Improvement and Reauthorization Act of 2005.
2 Wall Street Journal, “Secret Court's Oversight Gets Scrutiny,” Evan Perez June 9, 2013. Website: http://www.wsj.com/articles/SB10001424127887324904004578535670310514616
3 The Washington Post, “FBI Finds It Frequently Overstepped in Collecting Data,” John Solomon, June 14, 2007. Website: http://www.washingtonpost.com/wp-dyn/content/article/2007/06/13/AR2007061302453.html