Sec. 702 FISA searches require a warrant for U.S. persons. United States v. Hasbajrami, 2024 U.S. Dist. LEXIS 238018 (E.D.N.Y. Dec. 2, 2024), filed with CISO and unsealed Jan. 21, 2025), on remand from United States v. Hasbajrami, 945 F.3d 641 (2d Cir. 2019):
Defendant argues that querying a Section 702 database in connection with a U.S. person generally requires a warrant, even where the initial interception was lawfully conducted. (Def.’s Mem. Supp. Mot. (“Def.’s Mem.”) at 31-36, ECF No. 191.) That is, the incidental or inadvertent acquisition of Defendant’s communications does not automatically permit the government to search among the acquired communications without a warrant. (Id.) For the reasons stated below, the Court agrees, at least as applied in this case.
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The Court finds the same logic applicable here. A search that relies on an initial warrant or exception to the warrant requirement is limited by its original justification, and to intrude further on lawfully acquired items requires new and independent approval. Just as the Supreme Court found that the cell phone in Riley was lawfully seized pursuant to the search incident to arrest exception, the Second Circuit found that the “vast majority” of Defendant’s communications were lawfully acquired as both outside Fourth Amendment protection and subject to the incidental overhear exception. Riley, 573 U.S. at 381; Hasbajrami, 945 F.3d at 663-64. It follows, therefore, that just as the officers in Riley were required to obtain a warrant to search the seized cell phone, so too was the government required to obtain a warrant to view Defendant’s communications that were lawfully intercepted. 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. See Hasbajrami, 945 F.3d at 670 (“Storage has little significance in its own right[.]”); see also Sedoghaty, 728 F.3d at 913; Runyan, 275 F.3d at 464-65; Mulder, 808 F.2d at 1349.
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.'” United States v. Karo, 468 U.S. 705. 717, 104 S. Ct. 3296, 82 L. Ed. 2d 530 (1984) (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S. Ct. 367, 92 L. Ed. 436 (1948)). Indeed, “the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley, 573 U.S. at 403 (adding that “[o]pposition to such searches was in fact one of the driving forces behind the Revolution itself”).
As the Second Circuit acknowledged, querying [TEXT REDACTED BY THE COURT] based on speculation that Section 702 might have intercepted relevant information looks “like a general warrant.” Hasbajrami, 945 F.3d at 671; see also United States v. Shi Yon Liu, 239 F.3d 138. 140 (2d Cir. 2000) (general searches “are especially pernicious” and “have long been deemed to violate fundamental rights”) (quoting Marron v. United States, 275 U.S. 192, 195, 48 S. Ct. 74, 72 L. Ed. 231, Treas. Dec. 42528 (1927)). The comparison to a general warrant is particularly apt given that Section 702-acquired information is retained “not to keep tabs on a United States person, but to keep tabs on the non-United States person abroad who has been targeted.” Hasbajrami, 945 F.3d at 670. Indeed, Section 702 is specifically designed to avoid the collection of communications by U.S. persons. When the NSA learns that a target is a U.S. person, it must immediately cease targeting that individual and destroy any such communications already acquired, subject to limited circumstances of waiver. 50 U.S.C. § 1881a(b) (outlining “limitations” on targeting procedures); see also PCLOB Report at 127-28 (summarizing minimization procedures). Once communications are collected, minimization serves to limit [TEXT REDACTED BY THE COURT] involving U.S. persons. 50 U.S.C. § 1801(h); see also 50 U.S.C. § 1821(4) (minimization procedures must be “reasonably designed … to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting [U.S.] persons”). Unless the intercepted communications of U.S. persons contain evidence of a crime or serve a foreign intelligence purpose, the government must destroy those communications. See 50 U.S.C. § 1801(h), 1821(4); see also PCLOB Report at 128 (acknowledging that NSA procedures “require the destruction of irrelevant communications of or concerning U.S. persons,” even though in practice “this destruction rarely happens”). These procedures mitigate the collection and review of communications of U.S. persons. While communications of U.S. persons may nonetheless he 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. (Def. Mem, at 19.)
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techdirt: Federal Court: FBI’s Backdoor Searches Of Section 702 Collections Violate The 4th Amendment by Tim Cushing
