Defendant pled to attempting to provide material support to a terrorist organization by flying from JFK to Turkey to Pakistan. His emails overseas were captured by FISA and led to his prosecution. After the plea he filed a 2255 to reopen the constitutional question of the interceptions, which is denied. The surveillance complied with the Fourth Amendment. United States v. Hasbajrami, 2016 U.S. Dist. LEXIS 30613 (E.D.N.Y. Feb. 18, 2016, filed Mar. 8, 2016):
There are two types of Section 702 collection: PRISM and Upstream. See PCLOB Report at 7, 33. ln PRISM collection, the government identifies the user accounts it wants to monitor and sends a “selector”—a specific communications facility, such as a target’s email address or telephone number—to the relevant communications service provider. Id. at 32-33. A government directive then compels the communications service provider to give it communications sent to or from that selector (i.e., the government “tasks” the selector).11 Id. at 33; 50 U.S.C. § 1881a(h). This type of surveillance, which intercepts “to/from” communications, can result in the interception of communications with U.S. persons if the target happens to communicate with such a person. See PCLOB Report at 33.
Upstream collection, on the other hand, involves the acquisition of communications through the compelled assistance of the providers that control the telecommunications backbone within the United States over which communications travel. Id. at 35. Like PRISM, upstream collection intercepts “to/from” communications. Id. at 37. But upstream collection is less tailored than PRISM collection; it allows the government to additionally intercept “about” communications, that is, communications that refer to, or are “about,” a particular selector. Id. For example, an email in the body of which a targeted email address appears is an “about” communication, even though the targeted person is not necessarily a participant in the intercepted communication. Id. If a communication is to, from, or about a tasked selector, the NSA can acquire an entire MCT, which may contain more than one discrete communication. Id. at 39-41. Simply put, the government can collect other discrete communications that do not have anything to do with the tasked selector, which can result in the collection and querying of wholly domestic communications of non-targeted persons. Id. at 7; NSA Report at 5-6. Some have argued that the FISC erred in its approval in 2011 of “about” communications collection, instead of limiting Section 702 surveillance to communications intercepted by “to/from” collection. See, e.g., Donohue at 159; First Amended Complaint, Wikimedia Found. v. NSA, 15-CV-00662, ¶ 50 (D. Md. June 19, 2015) (equating upstream collection with allowing “a government agent [to] open every piece of mail that comes through the post to determine whether it mentions a particular word or phrase”).
The government conducted the disputed surveillance in this case under the PRISM program. Gov’t Cl. Br. at 54. None of the Section 702 communications used in the Title I and Title II FISA applications targeting the agent of a foreign power were “about” communications. Id. Thus, the constitutionality of upstream collection is not at issue here.
Headings of the opinion:
B. The Constitutionality of Section 702 is Limited to an As Applied Challenge
C. Warrantless Surveillance Pursuant to Section 702 is Lawful Under the Fourth Amendment When It Targets Non-US. Persons Abroad
1. The Fourth Amendment Does Not Apply to Foreign Persons Abroad
2. The Incidental Collection of U.S. Persons’ Communications with Lawfully Targeted Non-US. Persons Abroad Does Not Trigger the Warrant Requirement
3. PRISM Collection is Reasonable Under the Fourth Amendment
a. The Government Has a Compelling Interest in Obtaining Foreign Intelligence Information to Protect National Security
b. Individuals Have a Diminished Expectation of Privacy in Email Communications with Non-U.S. Persons Outside the United States
c. Section 702’s Safeguards and Procedures Sufficiently Protect Non-Targeted US. Persons’ Privacy Interests
D. The Traditional FISA Information Was Lawfully Acquired Because It Was Obtained Pursuant to a Warrant Based on Probable Cause
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"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." —Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." —Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." — Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property." —Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." —United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth." —Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." —Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." —Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.” —United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.” —United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." —Mick Jagger & Keith Richards, Let it Bleed (album, 1969)
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“Children grow up thinking the adult world is ordered, rational, fit for purpose. It’s crap. Becoming a man is realising that it’s all rotten. Realising how to celebrate that rottenness, that’s freedom.” – John le Carré, The Night Manager (1993), line by Richard Roper
"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." —Johnson v. United States, 333 U.S. 10, 13-14 (1948)
The book was dedicated in the first (1982) and sixth (2025) editions to Justin William Hall (1975-2025). He was three when this project started in 1978.
