US Federal Court Rules Backdoor Searches of FISA Section 702 Data Unconstitutional
A federal judge has ruled that the federal government's method of searching through information incidentally collected on US-based individuals violates the Fourth Amendment of the US Constitution.
- The landmark ruling comes from the criminal case United States v. Hasbajrami, following more than a decade of litigation.
- The case involves a U.S. resident arrested at New York JFK airport in 2011 en route to Pakistan, charged with providing material support to terrorists. After his original conviction, the government revealed that the case relied partly on warrantless emails between Hasbajrami and an unnamed foreigner linked to terrorist groups. These emails were collected using Section 702 programs, stored in a database, and later searched without a warrant using terms related to the defendant.
"To countenance this practice would convert Section 702 into precisely what Defendant has labeled it - a tool for law enforcement to run 'backdoor searches' that circumvent the Fourth Amendment," US District Judge LaShann Dearcy Hall said in the ruling released on January 21st.
- The district court found that, regardless of the government’s ability to collect communications between foreigners and Americans without a warrant under Section 702, it cannot typically invoke a "foreign intelligence exception" to the Fourth Amendment’s warrant clause when searching these communications, which is standard FBI practice.
"While communications of US persons may nonetheless be intercepted, incidentally or inadvertently, it would be paradoxical to permit warrantless searches of the same information that Section 702 is specifically designed to avoid collecting," the judge said, adding that "public interest alone does not justify warrantless querying."
- Furthermore, even if such an exception were applicable, the court determined that the privacy intrusion caused by reading sensitive communications made these searches "unreasonable" under the Fourth Amendment.
- Per EFF, the FBI conducted 3.4 million warrantless searches of US person’s 702 data in 2021 alone.
- FISA Section 702 is now scheduled to expire on April 15, 2026. Throughout the years, US Congress has consistently voted to renew the protections under Section 702, but now the Electronic Frontier Foundation (EFF) hopes that the latest ruling might be sufficient to inspire significant change.
Court Ruling
EFF Article / Archive
Ars Technica Article / Archive
The Epoch Times Article / Archive
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