Federal Court: FBI’s Backdoor Searches Of Section 702 Collections Violate The 4th Amendment

It’s a grind. But it’s been worth it. Last week, the court that’s been handling Agron Hasbajrami’s case for nearly a decade finally said what plenty of people have been saving for nearly as long: the FBI’s warrantless searches of NSA collections to target US persons’ communications and data violates the Constitution. Here’s Andrew Crocker and Matthew Guariglia of the EFF, detailing the lengthy background of this case (and this win) in a couple of concise paragraphs:

Better late than never: last night a federal district court held that backdoor searches of databases full of Americans’ private communications collected under Section 702 ordinarily require a warrant. The landmark ruling comes in a criminal case, United States v. Hasbajrami, after more than a decade of litigation, and over four years since the Second Circuit Court of Appeals found that backdoor searches constitute “separate Fourth Amendment events” and directed the district court to determine a warrant was required. Now, that has been officially decreed.

[…]

This decision sheds light on the government’s liberal use of what is essential a “finders keepers” rule regarding your communication data. As a legal authority, FISA Section 702 allows the intelligence community to collect a massive amount of communications data from overseas in the name of “national security.” But, in cases where one side of that conversation is a person on US soil, that data is still collected and retained in large databases searchable by federal law enforcement. Because the US-side of these communications is already collected and just sitting there, the government has claimed that law enforcement agencies do not need a warrant to sift through them. EFF argued for over a decade that this is unconstitutional, and now a federal court agrees with us.

It’s been five years since the Second Circuit Appeals Court ruled — albeit not all that convincingly — that some backdoor searches of Section 702 collections might violate the Fourth Amendment. Five years later, the lower court has applied this limited guidance to arrive at the conclusion [PDF] the Appeals Court strongly hinted at: backdoor searches targeting US persons require the use of a warrant.

The court says none of the warrant exceptions apply to backdoor searches, at least not in this case. And the government cannot hope to dodge warrant requirements by claiming the search resulting in the NSA’s collection isn’t actually the FBI’s search, since all it searches is data and communications already obtained by another government agency.

[T]he Second Circuit acknowledged the unique nature of querying, compared to Section 702 surveillance because the information queried is already in the government’s possession. As the Second Circuit observed: “[s]torage has little significance in its own right.” In other words, the government cannot circumvent application of the warrant requirement simply because queried information is already collected and held by the government.

The FBI also cannot use built-in procedures meant to minimize interception of US persons’ communications as a justification for warrantless searches. That the NSA has to examine its collections to minimize stockpiles of US persons’ data doesn’t mean it’s ok for the FBI to do basically the same thing, but with the explicit intent of warrantlessly accessing US persons’ information.

By arguing that compulsory review of Section 702-acquired communications justifies later review of even a subset of those communications, the Government seeks to use minimization procedures to bootstrap access to communications of United States citizens for whom the procedures are designed to protect. This argument is akin to claiming that law enforcement can access privileged communications reviewed by a filter team because government employees laid eyes on the privileged communications at some point in the process. The argument makes no more sense in that context than it does here.

The minimization procedures are there to limit incidental collection of domestic communications. That alone strongly suggests the NSA cares more about the Fourth Amendment than the FBI does. That the FBI has decided to twist these protections into something it can use to avoid seeking warrants just makes it all the more obvious why warrants should be required for these searches.

While communications of U.S. 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. 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.

And if that’s not convincing enough, there’s this bit of bench-slapping:

If you can’t see the embed, it’s two fully redacted paragraphs that close with this sentence:

The Government’s opposition is rife with similarly vague and unsupported notions.

Yes, there’s a lot that’s been redacted but the end result is out there in plain English, free of redactions: the FBI needs warrants to search Section 702 collections. The good faith exception applies to this case, which means it won’t do much for the defendant, who was arrested in 2011 for alleged material support for terrorism. But it does apply going forward, for the time being. The government will certainly appeal this ruling. And it might take an act of Congress to actually make warrant requirements permanent. Even if this turns out to be temporary, it’s still significant. And hopefully the law laid down here will be utilized by others facing similar circumstances.