One of the government’s most controversial warrantless spying practices actually requires a warrant, according to a new federal court ruling.
THE decisionhanded down Tuesday evening by Judge LaShann DeArcy Hall of the Eastern District of New York, concerns the case of Agron Hasbajrami, a US resident arrested in 2011 and who initially pleaded guilty to attempting to provide material support to a terrorist organization. Hasbajrami appealed his case after learning that federal agents had acquired some of the evidence against him through a warrantless search of databases containing intercepted communications under the Foreign Intelligence Surveillance Act (FISA).
FISA allows federal spy agencies to operate backdoors into Internet companies and electronic communications providers, such as Google, Meta and Apple, through which they collect large amounts of communications. The law is supposed to minimize the collection of communications involving U.S. citizens and residents, but it has many loopholes. Section 702 of the Act specifically authorizes the government to collect communications that meet certain secret criteria without demonstrating probable cause to believe that the persons communicating are not U.S. citizens or residents. Once collected, these communications can be stored in databases and later accessed without, according to the federal government, requiring a warrant.
Hasbajrami argued, and Judge DeArcy Hall agreed, that such after-the-fact searches require a warrant when the target of the searches is a U.S. resident.
“Ruling otherwise would effectively allow law enforcement to compile a repository of Section 702 communications – including those from U.S. persons – which can then be accessed upon request without limitation. » DeArcy Hall wrote.
The Hasbajrami case has been bouncing around the federal courts for more than a decade. In 2018, a panel of the Second Circuit Court of Appeals ruled that the government’s warrantless collection of a U.S. person’s communications via FISA did not constitute a violation of the Fourth Amendment, as long as the collection was a consequence incidental to government surveillance of a non-U.S. person. But the court said it did not have sufficient evidence to decide whether the government should have obtained a warrant before searching databases of information collected under FISA Section 702 for communications involving a specific American person, in this case Hasbajrami.
The appeals court sent the case back to Judge DeArcy Hall, who reviewed the specific searches in question and concluded that the government failed to show that it could not have applied for and obtained a warrant to authorize them.
Civil liberties advocates hailed the ruling as a victory and called on Congress to reform FISA to explicitly state that searches of collected communications require a warrant.
“We expect any lawmaker worthy of the title to listen to what this Federal Court says and create a legislative mandate requirement so that the intelligence community does not continue to trample on constitutionally protected rights to private communications,” wrote Andrew Crocker and Matthew Guariglia of the Electronic Frontier Foundation.
Despite the favorable ruling on the warrant requirements, Judge DeArcy Hall’s ruling did not grant Hasbajrami’s request to suppress evidence gathered by federal agents against him through their searches of state databases. 702. She found that the agents were acting in “good faith,” under what was, until her decision, the law in force governing such searches.