One of the most controversial federal procedures does, in fact, require a warrant, according to a new federal court ruling.
The decision, issued Tuesday night by the Eastern District of New York, Judge LaShann DeArcy Hall, comes in the case of Agron Hasbajrami, an American citizen who was arrested in 2011 and initially pleaded guilty to attempting to support a terrorist organization. Hasbajrami appealed his case after learning that federal agents obtained some of the evidence against him through a warrantless search of information containing communications obtained under the Foreign Intelligence Surveillance Act (FISA).
FISA authorizes federal spy agencies to work behind the scenes of Internet companies and telecommunications providers, such as Google, Meta, and Apple, where they collect large amounts of communications. This act is supposed to limit the collection of communications involving US citizens and residents, but it has various loopholes. Section 702 of the law specifically allows the government to collect communications that meet certain confidentiality criteria without showing probable cause to believe that the individuals speaking are not US citizens or residents. Once collected, those communications can be stored in a database and later searched externally, the federal government says, which requires a permit.
Hasbajrami argued, and Judge DeArcy Hall agreed, that the latter search requires a warrant if the search is of a US citizen.
“To hold otherwise would allow law enforcement to amass a cache of communications under Section 702—including those in the US—that could later be searched on demand without limitation.” DeArcy Hall wrote.
Hasbajrami’s case has been in the federal court system for more than a decade. In 2018, a panel of the Second Circuit Court of Appeals ruled that the government’s warrantless collection of US citizens’ communications using FISA is not a violation of the Fourth Amendment, as long as the collection is the result of the government’s risk of surveillance of a non-US person. But the court said it did not have enough evidence to determine whether the government should have obtained a warrant to search the information collected under FISA Section 702 for communications involving a US individual, in this case, Hasbajrami.
The appeals court sent the case back to Judge DeArcy Hall, who reviewed the specific searches in question and found that the government failed to prove that it could not have sought and obtained a warrant.
Civil liberties advocates hailed the decision as a victory and called on Congress to amend FISA to make it clear that searches of aggregated communications require a warrant.
“We expect any lawyer worthy of that title to heed what this federal court has to say and implement a legislative consent requirement so that the intelligence community does not continue to trample on constitutionally protected private communications rights,” wrote Andrew Crocker and Matthew Guariglia. , of the Electronic Frontier Foundation.
Despite ruling in favor of the warrant requirements, Judge DeArcy Hall’s decision did not grant Hasbajrami’s request to suppress the testimony of federal agents gathered against him through their Section 702 database search. He found that the agents were acting “in good faith” under the law governing that search, pending his decision.
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