Title: Courts Require Warrants for FBI to Scrutinize FISA Surveillance Data
In a recent court decision, Judge LaShann DeArcy Hall of the eastern district of New York ruled that the government must obtain a warrant to conduct warrantless searches of databases containing communications intercepted under the Foreign Intelligence Surveillance Act (FISA) Section 702, especially when the target is a U.S. resident.
This case involves U.S. resident Agron Hasbajrami, who was arrested in 2011 and initially pleaded guilty to attempting to provide material support to a terrorist organization. Hasbajrami appealed his case after learning that federal agents had used warrantless searches to gather evidence against him.
FISA authorizes spy agencies to gain backdoors into internet companies and electronic communications providers, allowing them to collect vast amounts of communications. Section 702 allows the government to collect communications without demonstrating probable cause that the people communicating aren't U.S. citizens or residents. The collected communications can later be searched without a warrant, according to the federal government.
However, Judge DeArcy Hall disagreed with this stance, stating that "to hold otherwise would effectively allow law enforcement to amass a repository of communications under Section 702—including those of U.S. persons—that can later be searched on demand without limitation."
This case has had a long journey through the federal court system. In 2018, the Second Circuit Court of Appeals concluded that the government's warrantless collection of a U.S. person's communications through FISA Section 702 does not infringe upon the Fourth Amendment, as long as collection is an incidental consequence of surveilling a non-U.S. person. However, the court was unable to resolve whether a warrant was necessary for searching FISA Section 702 databases for communications involving a specific U.S. individual, such as Hasbajrami.
Civil liberties advocates heralded the decision as a victory and urged Congress to reform FISA to explicitly require warrants for searches of collected communications. Andrew Crocker and Matthew Guariglia, of the Electronic Frontier Foundation, wrote that "any lawmaker worthy of the title should listen to what this federal court is saying and create a legislative warrant requirement so that the intelligence community does not continue to trample on the constitutionally protected rights to private communications."
Despite the positive ruling on warrant requirements, Judge DeArcy Hall did not grant Hasbajrami's request to suppress the evidence gathered against him through the Section 702 database searches. She determined that the agents acted in good faith under the prevailing law governing such searches.
As per the enrichment data, the court ruled that backdoor searches are unreasonable and that a "foreign intelligence exception" does not justify warrantless querying of communications collected under Section 702. The ruling also highlights the privacy intrusion associated with these searches, deeming them "unreasonable" under the Fourth Amendment.
This ruling could significantly impact the future of technology and privacy, as it questions the ability of tech companies and spy agencies to conduct warrantless searches of communications collected under Section 702. Civil liberties advocates are calling on Congress to reform FISA to explicitly require warrants for such searches, arguing that the current practice tramples on constitutional rights to private communications.
The decision also underscores the need for tech companies to reevaluate their cooperation with government agencies, as the unreasonable use of backdoor searches could potentially tarnish their reputations for protecting user privacy and data security.
