District Court Judge Rules FISA 702 Queries Required Warrant

A federal judge in Brooklyn has ruled that the U.S. government violated the Fourth Amendment in conducting U.S. person queries without a warrant under Section 702 of the Foreign Intelligence Surveillance Act (FISA). The finding from Judge LaShann DeArcy Hall of the Eastern District of New York in United States v. Hasbajrami presented a rare opportunity for a federal court to question the constitutionality of the practice in the context of a criminal case. While Hall ultimately declined to suppress querying-derived evidence from a decades-old counterterrorism investigation, her Fourth Amendment analysis carries broader implications for the political debate about warrant requirements for U.S. person queries.

Section 702 is a foreign intelligence collection authority within FISA that allows the U.S. government to compel the assistance of U.S. companies in collecting the communications of non-U.S. persons located outside the United States. Unlike more traditional collection under Title I of FISA, the U.S. government does not need individualized court orders for Section 702 collection. Although Section 702 only permits foreign targeting, sometimes U.S. person communications are collected incidentally—that is, when a foreign target communicates with a U.S. person—and then stored in government databases. Government officials can query the stored data, without a warrant, including with search terms related to U.S. persons. These features have contributed to Section 702’s reputation as a highly effective, yet highly controversial, tool.

The FBI’s practice and use of U.S. person queries proved particularly divisive during last year’s debate over how to reauthorize Section 702. The House of Representatives only narrowly voted down imposing a warrant requirement for those queries. Section 702 is set to expire in April 2026, underscoring the pendency of this issue—and Judge Hall’s ruling—for the next reauthorization.

Background

Agron Hasbajrami was 27 years old when he was arrested in 2011 while boarding a flight to Turkey. The tent, boots, and cold weather gear in his possession spoke to his interest in eventually reaching the austere conditions of Pakistan’s Federally Administered Tribal Areas, where he hoped to join the fight against U.S. forces. He would plead guilty to attempting to provide material support to terrorists.

In 2014, the government revealed to Hasbajrami that its case against him relied partially on Section 702 collection. While the government had already notified Hasbajrami that its evidence included information derived from Title I and Title III FISA collection, the reality was that some of this court-ordered collection was, itself, derived from warrantless Section 702 collection.

With this knowledge, Hasbajrami withdrew his guilty plea and challenged the Section 702 evidence and any evidence that resulted from it. He lost in district court and again pleaded guilty, but he was permitted to appeal the denial of the suppression motion.

On appeal, Hasbajrami argued the incidental collection, inadvertent collection, and querying conducted against him without a warrant under Section 702 was unconstitutional. (Incidental collection refers to the unintended acquisition of communications of non-targets through their contact with actual targets, while inadvertent collection is the accidental targeting of someone who should not be a candidate for Section 702 collection.) In its 2019 decision United States v. Hasbajrami, the U.S. Court of Appeals for the Second Circuit largely dismissed his claims on incidental collection and inadvertent collection. The Second Circuit was more receptive on the issue of querying. The panel observed that querying stored data raised “Fourth Amendment implications” that counseled viewing it as a separate Fourth Amendment event. The Second Circuit was concerned about Section 702’s broad technological sweep, the need to safeguard U.S. person privacy interests, and the emerging consensus—reflected in Riley v. California—that the government may need additional probable cause before searching information that it has lawfully collected. The opinion also noted that “much may depend on who is querying what database.”

What kinds of querying, subject to what limitations, under what procedures, are reasonable within the meaning of the Fourth Amendment, and when (if ever) such querying of one or more databases, maintained by an agency of the United States for information about a United States person, might require a warrant, are difficult and sensitive questions. We do not purport to answer them here, or even to canvass all of the considerations that may prove relevant or the various types of querying that may raise distinct problems.

The Second Circuit remanded the querying challenge for additional analysis. It directed the district court to assess, principally, “whether any querying of databases of Section 702-acquired information using terms related to Hasbajrami was lawful under the Fourth Amendment.”

 Judge Hall’s Opinion

On Jan. 21, Judge Hall ruled that the querying related to Hasbajrami violated the Fourth Amendment. She found that the government’s queries required a warrant and the government had not made the requisite showing for an exception to this requirement. Hall also found that even if a warrant exception was applicable, the queries were unreasonable under the Fourth Amendment. But she did not suppress the query-derived evidence against Hasbajrami, whose plea and sentence remain undisturbed.

Threshold Findings

Judge Hall began by rebuffing the government’s argument that the court should “bypass the warrant requirement” and proceed to the reasonableness assessment. The government hoped to find support in Maryland v. King’s sanctioning of some warrantless searches, but Hall concluded this authority “did not displace the general rule that a search under the Fourth Amendment requires a warrant unless subject to a specific exception.” Hall felt secure in declaring that “a warrant was presumptively required,” in part, given the Second Circuit’s strong suggestion that querying amounted to a “Fourth Amendment event[.]”

The government fared little better with its argument that searching lawfully collected information did not require a separate warrant. Judge Hall applied the logic of Riley v. California to the record before her. Because “further [intrusions] on lawfully acquired items requires new and independent approval,” lawfully collecting Hasbajrami’s communications under Section 702 did not automatically permit the querying of the information. In the court’s view, to hold otherwise would bestow a “general warrant” enabling the government to maintain a huge database of Section 702 communications, including those of U.S. persons, that it could search at its leisure.

The government’s other threshold arguments also failed to gain traction. It asserted that Section 702 minimization procedures, which are designed to reduce the retention or sharing of U.S. person information, obviated the need for a query warrant. But Judge Hall thought this idea was as nonsensical as “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.” She also dismissed the government’s suggestion that her court was any less competent than the Foreign Intelligence Surveillance Court (FISC) to assess the reasonableness of Section 702 queries.

Reasonableness Analysis

Judge Hall’s ruling then considered whether the government’s failure to obtain a warrant for its queries could fit into an exception to the general warrant requirement. She focused on the foreign intelligence exception to the warrant requirement, which permits some warrantless surveillance of individuals during foreign intelligence investigations.

Since FISA’s enactment, the FISC and Foreign Intelligence Surveillance Court of Review have applied the foreign intelligence exception to various aspects of traditional FISA or FISA Section 702 surveillance. Notably, these decisions involved surveillance directed against persons located outside of the United States (In re Directives Pursuant to Section 1058 of the Foreign Intelligence Surveillance Act), the use of pen registers (In re Certified Question of Law), or Section 702’s targeting and minimization procedures (Redacted).

The government, in Hasbajrami’s case, argued for extending the exception to querying.

Judge Hall found that the government had not made the requisite showings for the exception to apply. There are two broad requirements for the foreign intelligence exception: (a) The purpose must go beyond “garden variety” law enforcement, and (b) there is a “high degree of probability that requiring a warrant would hinder the government’s ability to collect time-sensitive information.” The government satisfied the first prong but left the court wanting on the second.

The court appeared to undertake a fact-intensive inquiry into whether a time-sensitive circumstance animated the government’s queries of Section 702 information over a multi-month period in 2011. (Much of it was redacted.) The largely unclassified analysis indicated that the court did not understand how the government’s efforts “would have been thwarted or hindered by obtaining a warrant” before querying Section 702 information.

In sum, Judge Hall found no signs of “a fast-moving investigation,” “danger of evidence being destroyed,” or “any other circumstance” that justified intruding on Hasbajrami’s Fourth Amendment rights. She also distinguished the exigency that may be present during collection from querying:

“It is not difficult to imagine why the timely collection of foreign intelligence information is inherently critical. Communications occurring in real time can be deleted or corrupted prior to collection if they are not acquired as soon as possible. However, when it comes to querying, this inherent risk does not exist because the universe of information is already securely stored and not at risk of being deleted before it can be reviewed.”

Judge Hall also found that even if she had applied the foreign intelligence exception, the querying failed the Fourth Amendment requirement of “reasonableness.” This analysis balanced the “substantial” degree of intrusion against the “powerful” public interest.

On the degree of intrusion, Judge Hall examined the significant privacy interests implicated in reading Hasbajrami’s emails. She invoked City of Ontario v. Quon to compare searching “a personal e-mail account” with searching a cell phone or wiretapping a home phone. Section 702’s sweeping remit, which the court saw as analogous to the aggregation of “deeply revealing” cell-site location information at issue in Carpenter v. United States, also compounded the intrusion on Hasbajrami.

Judge Hall reckoned with the strong public interest in national security investigations. As she explained, “[a]s with any other search subject to the warrant requirement, exceptions will sometimes be made based on the circumstances. But just as the Court does not hold that all querying requires a warrant, it likewise cannot hold that all instances of querying are of such paramount public interest as to never require a warrant.” This rationale underscored how the record of queries did not reveal an urgent or exigent circumstance to justify circumventing Hasbajrami’s Fourth Amendment rights.

Remedies

A violation of the Fourth Amendment sometimes results in exclusion of the unlawfully obtained evidence. That outcome eluded Hasbajrami, who ultimately lost on his motion to suppress the Section 702 queries as evidence.

The government made up for lost ground in the court’s discussion of remedies. Judge Hall observed that the government’s querying followed FISC-approved minimization procedures. This “reasonable reliance on binding precedent” favored applying the good-faith exception to the exclusionary rule. (This exception permits evidence that may have otherwise been invalidly obtained to be admitted into court based on law enforcement officials’ reasonable belief that they were acting within the bounds of the law.) The court also acknowledged that the legal landscape on digital search and seizure issues had evolved significantly since 2011; agents conducting the queries would not have known back then that a warrant was required.

Hasbajrami argued unsuccessfully that FISA’s statutory remedy precluded application of the good-faith exception. The FISA statute, in 50 U.S.C. § 1806(g), provides that a court will suppress evidence derived from unlawfully “authorized or conducted” electronic surveillance. But both the court and the government construed this provision to remediate violations of FISA procedure, not the Fourth Amendment violations at issue in Hasbajrami’s case. As Judge Hall concluded, “any remedy for a violation of Defendant’s rights under the Fourth Amendment must arise under the Fourth Amendment.”

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The ruling gives a “win” to both sides of the debate about requiring the FBI to get a warrant before conducting U.S. person queries.

Proponents of a warrant requirement can point to a favorable ruling in an as-appliedchallenge to warrantless U.S. person querying under Section 702. This win, although it has no precedential value, will animate renewed calls for Congress to change the law.

Opponents may find solace in Judge Hall’s respect for the FISC’s programmatic approval of Section 702 lawful collection procedures, on which the government reasonably relied when running queries. She also underscored that some circumstances may, in fact, sanction warrantless queries. The court’s analysis supports the government’s continued use of Section 702 as a foreign intelligence tool.

On balance, the findings from the Second Circuit and Judge Hall suggest the jurisprudential landscape, however limited, is moving away from the government’s position on the legality of warrantless U.S. person queries. How this trend informs next year’s reauthorization debate remains to be seen.