US Government Back Door FISA Searches Are Unconstitutional: Federal Judge

The Brooklyn Federal Courthouse in New York City on Sept. 24, 2021. Angus Mordant/Reuters

The federal government’s method of searching through information incidentally collected on U.S.-based individuals violates the U.S. Constitution’s Fourth Amendment, a federal judge has ruled.

“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,” U.S. District Judge LaShann Dearcy Hall said in the ruling, which was released on Jan. 21.

Government officials acquired information on the defendant, Agron Hasbajrami, a legal permanent resident who they arrested in 2011 and charged with providing material support to a terrorist organization. The information was gathered under the Foreign Intelligence Surveillance Act (FISA), which lets authorities spy on people.

After Hasbajrami pleaded guilty, authorities disclosed that some of the evidence they used in the case was the fruit of information they obtained without a warrant under a FISA supplement called Section 207, which enables authorities to conduct surveillance on non-U.S. persons reasonably believed to be outside the United States.

The authorities had gathered some evidence on Hasbajrami as they targeted non-Americans believed to be located outside the country and other communications from Hasbajrami because, they said, they at one point mistakenly thought he was a non-U.S. person.

Hasbajrami moved to suppress the evidence. After the motion was denied, he pleaded guilty on the condition he be allowed to appeal the denial.

A federal appeals court in 2019 largely upheld the denial, finding that the government’s incidental collection of information on Hasbajrami as they carried out surveillance was lawful because the surveillance was lawful in the first place. The appeals court also remanded back to the district court the examination of whether the government’s so-called back door searches of the Section 702 database violated the Constitution.

Hall, in the new decision, concluded they did. While the government’s collection of the evidence was lawful, that doesn’t automatically mean the subsequent database searches were, she said.

“In other words, simply acquiring defendant’s communications under Section 702, albeit lawfully, did not, in and of itself, permit the government to later query the retained information,” Hall wrote.

“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. But this approach undermines the purpose of the warrant requirement, which is ’to interpose a ‘neutral and detached magistrate’ between the citizen and ’the officer engaged in the often competitive enterprise of ferreting out crime,'” Hall added.

The judge denied the remaining portion of Hasbarjami’s motion, which asked for the government to hand over the evidence it collected.

A U.S. Department of Justice spokesperson declined to comment.

An attorney for Hasbarjami did not respond to a request for comment.

Government watchdogs hailed the ruling.

“This is a major constitutional ruling on one of the most abused provisions of FISA,” Patrick Toomey, deputy director of the American Civil Liberties Union’s National Security Project, said in a statement.

“In light of this ruling, we ask Congress to uphold its responsibility to protect civil rights and civil liberties by refusing to renew Section 702 absent a number of necessary reforms, including an official warrant requirement for querying US persons data and increased transparency,” Andrew Crocker and Matthew Guariglia, with the Electronic Frontier Foundation, added.

President Donald Trump’s nominee for CIA director, John Ratcliffe, said during his recent confirmation hearing that Section 702 provides an “indispensable national security tool” and that he opposed requiring warrants for queries of the database.

Former Rep. Tulsi Gabbard from Hawaii, whom Trump selected as his national security adviser, also says she supports Section 702.

Section 702 has been repeatedly reauthorized by Congress, most recently in 2024.

Section 702 is set to expire on April 15, 2026.