In 2008, then President George W. Bush signed into law the FISA Amendments Act. This act made numerous changes to the Foreign Intelligence Surveillance Act of 1978. Leading among them were changes to Section 702 that empowers the US government to engage in warrantless surveillance of electronic communications.
The law authorizes targeting of foreigners outside the US to acquire foreign intelligence information. The scope and breadth of electronic inquiry is ill defined within the act. In the process, huge amounts of Americans’ domestic data is also collected and is being stored in databases for undetermined periods of time.
According to the ACLU, the procedures developed to implement the act, as authorized by the Foreign Intelligence Surveillance Court, “permits the government to conduct surveillance without probable cause or individualized suspicion. It permits the government to monitor people who aren’t even thought to be doing anything wrong, and to do so without particularized warrants or meaningful review by impartial judges”.
In May of 2023 the Office of the Director of National Intelligence (ODNI) released a redacted Foreign Intelligence Surveillance Court opinion which revealed that between 2020 and early 2021 the FBI misused the Section 702 database over 278,000 times. Section 702 of the FISA Act will expire at the end of 2023 unless it is reauthorized by Congress.
The FBI is not the only federal agency that has a problem safeguarding American’s privacy rights. The Department of Homeland Security is charged with the development, co-ordination and distribution of information concerning terrorist activities. This is accomplished through 80 individual DHS Fusion Centers spread across the US.
In 2013, George Loder, a Maine state police detective, was assigned to Maine’s fusion center, the Maine Information and Analysis Center (MIAC). From there he was assigned to the FBI’s Joint Terrorism Task Force (JTTF) in Portland to focus on anti-terrorism investigations.
Although still a member of the Maine state police, he was deputized as a federal agent, drove an FBI vehicle, carried FBI identification and reported directly to the FBI while assigned to the task force. As such he was compelled to follow FBI regulations while performing his job.
While still assigned to the FBI, Loder was asked by his state police supervisor to attend MIAC staff meetings via phone. While attending these meetings he learned that MIAC retains and shares personal information on individuals who are not suspected of engaging in any criminal or terrorist activities and would otherwise require a subpoena to obtain.
MIAC retains the collected data in a database even after finding no connection to criminal activity. This included people associated with lawful public protest and other constitutionally protected activities.
Loder was repeatedly pressured to brief MIAC on his FBI task force investigations. Loder refused, maintaining that under federal disclosure laws he could not do so without first filing the appropriate disclosure forms with the FBI.
In early April 2018, Loder spoke with the FBI’s Assistant Chief Division Counsel (ACDC) for the Boston field office and explained that he was being pressured to share FBI information without following FBI protocol. The ACDC confirmed that a disclosure form was required for every disclosure from FBI files and that Loder was expected to conform with FBI policy.
On May 5, Loder met with an Assistant United States Attorney (AUSA) about his supervisor’s directive to involve the MIAC staff in FBI investigations. The AUSA told Loder that by doing so he would be violating Department of Justice policy.
On May 15, Loder’s superiors removed him from his FBI assignment and reassigned him to a MIAC deck job maintaining the MIAC database. After stating that he was being assigned to an illegal activity, he was demoted to state trooper.
In 2020, Loder filed a whistleblower complaint against MIAC and three of his superiors for, among other things, illegally spying on US citizens, who in many cases had done nothing wrong, in violation of federal privacy laws.
The complaint contained six counts, the first two alleging he was retaliated against for reporting the collection and retention of confidential data by MIAC. The defendants successfully petitioned the court to dismiss the remaining four counts, predominantly on the basis of qualified immunity and procedural legal technicalities.
The George Loder case proceeded through the courts for nearly two years. It focused on whether Loder’s supervisors retaliated against him for his failing to share information about his work on the FBI’s anti-terrorism task force in violation of federal disclosure laws.
The federal jury heard four days of testimony before arriving at their verdict following five hours of deliberations. On Dec. 2, 2022 George Loder was awarded $300,000 in compensatory damages. The verdict did not address the legality of MIAC’s practices.
Following the judgement, Maine state police stated that they would retain an outside consultant to determine if federal privacy laws, referred to during the trial as 28 CFR part 23, that govern law enforcement intelligence databases, applies to fusion centers.
To date, any such review, if it has been performed, has not been made public.
Lew Kingsbury retired from a career working in the Defense Sector as a shipbuilder liaison with NAVSEA. For seven years he was a reporter for the Cryer newspaper in midcoast Maine. He is the author of “COVER-UP: How the FBI Hid the True Origins of the 9/11 Terrorist Attack”. His book can be found of Amazon Kindle.
From The Progressive Populist, December 1, 2023
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