EDNY Opinion in Hasbajrami Undermines FISA 702

On Jan. 21, Judge LeShann DeArcy Hall of the U.S. District Court for the Eastern District of New York publicly released her long-awaited, heavily redacted opinion in U.S. v. Hasbajrami (“the EDNY opinion”). That opinion has provoked a flurry of commentary insisting that it sets a new constitutional standard governing “backdoor searches” of the database of communications collected under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). 

The EDNY opinion stands alone in its conclusion that the Fourth Amendment requires the government to obtain a warrant prior to using a U.S. person query term to query the database of communications lawfully acquired under the authority of Section 702 orders issued by the Foreign Intelligence Surveillance Court (FISC). In 2017, when Congress reauthorized and amended Section 702 by adding a mandate for “querying procedures,” the congressional debate emphasized that “the Fourth Amendment, as interpreted by numerous federal courts, does not require the FBI to obtain a separate order from the FISC to review lawfully acquired Section 702 information.” The argument for a warrant requirement was also hotly debated during the most recent legislative reauthorization process that concluded in April 2024 with Congress again renewing Section 702 without a warrant requirement for querying. 

FISA Section 702 Querying Background

Before reviewing the EDNY opinion, it’s useful to understand the querying process used to find communications in the Section 702 database. 

A query is a basic analytic step foundational to efficiently and effectively reviewing the Section 702 data lawfully collected and in the government’s possession—queries do not result in the collection of any additional data. Queries are conducted by authorized personnel to more efficiently identify foreign intelligence information by, for example, pursuing links between individuals and entities; identifying threats to the homeland or national security interests abroad; and identifying potential victims of national security threat activity (that is, possible victims of cyberattacks on U.S. infrastructure by foreign actors).

Since Congress amended Section 702 in 2017, all queries of the Section 702 database are conducted pursuant to querying procedures prepared by each agency (the National Security Agency, the FBI, the CIA, and the National Counterterrorism Center) with access to Section 702-acquired information. These querying procedures, in accordance with Section 702, must be “consistent with the requirements of the fourth amendment to the Constitution.” The FISC reviews those querying procedures (along with the targeting and minimization procedures required to accompany each certification seeking authority to conduct a Section 702 acquisition) to ensure compliance with the Fourth Amendment. The FISC has repeatedly held that these targeting, minimization, and querying procedures are critical elements in analyzing whether programmatic surveillance like that conducted under the authority of Section 702 satisfies the Fourth Amendment’s requirement of reasonableness. That “reasonableness” is judged under a “totality of the circumstances” approach balancing the intrusion upon privacy interests against the degree to which that intrusion is necessary to promote the government’s interest in protecting national security—a “particularly intense [governmental] interest.” Specifically, the FISC has consistently stated that the procedures governing the collection, use, and dissemination of information derived from Section 702 acquisitions should be evaluated as a whole, both as written and as implemented, in assessing reasonableness under the Fourth Amendment.

In 2024, the director of national intelligence (DNI) reported that, in 2023 (the last year for which statistics are available in the DNI’s Annual Statistical Transparency Reports), the four agencies with access to Section 702-acquired data conducted 69,207 queries of the Section 702 database using U.S. person identifiers. The vast majority of these queries were conducted by the FBI with “about half” or a “plurality” relating to the investigation of malicious, state-sponsored cyberattacks. In 2023, the 11 judges who sit on the FISC, part time while also attending to their regular duties as federal court judges, issued 352 Title I FISA orders that, unlike Section 702 acquisitions, require individual probable cause determinations by the FISC. Simply put, the FISC lacks the resources to address the tidal wave of “warrant” applications that would result from the imposition of the warrant requirement that the EDNY opinion contemplates for U.S. person queries. As the President’s Intelligence Advisory Board observed in the run-up to the 2023 Section 702 reauthorization debate: “U.S. person queries are necessary in order to identify foreign threats to the homeland” and a requirement that intelligence agencies “obtain a warrant or court order prior to every U.S. person query of Section 702-acquired information would prevent intelligence agencies from discovering threats to the homeland.”

The Hasbajrami Investigation 

The FBI’s investigation of Agron Hasbajrami—a U.S. resident eventually charged with providing material support to terrorists—was conducted by its Joint Terrorism Task Force using information derived from electronic surveillance authorized under both Section 702 and FISA Title I. Certain communications to which Hasbajrami was a party were collected pursuant to Section 702 as part of the lawful acquisition of the communications of a foreign target located abroad with whom Hasbajrami was communicating. Queries of the Section 702 database retrieved some of Hasbajrami’s incidentally collected communications. Pursuant to FBI minimization procedures in effect at the time, the FBI queries used to find Hasbajrami’s communications in the database were required to be “reasonably likely to retrieve foreign intelligence information.” The EDNY opinion never suggests that the queries used in retrieving Hasbajrami’s communications from the Section 702 database were not so designed. Information from the Section 702 communications retrieved in response to those queries was then used to show probable cause to obtain both a Title I FISA electronic surveillance order directed at Hasbajrami’s communications and a FISA Title III order authorizing physical searches of Hasbajrami’s property. As required by FISA, the Title I surveillance application contained an attestation that a “significant purpose of the surveillance [was] to obtain foreign intelligence information” along with a description of the type of foreign intelligence information being sought.

All of the activities that preceded Hasbajrami’s arrest were conducted pursuant to procedures governing the collection, use, and dissemination of foreign intelligence information. Even after the government’s querying of the Section 702 database retrieved some of Hasbajrami’s communications, those communications were used to support a showing of probable cause, not to obtain a Title III law enforcement warrant specifying any particular criminal offense but, instead, to show probable cause for court orders under Titles I and III of FISA. 

The EDNY Opinion

Having used the “totality of the circumstances” approach to determine that the acquisition of Hasbajrami’s communications did not violate the Fourth Amendment, the U.S. Court of Appeals for the Second Circuit closed its opinion by making several observations about the FBI’s querying of the Section 702 database. The court’s opinion expressed concern that Section 702’s “sweeping technological capacity” poses the danger that the government may indiscriminately troll through its vast archive of collected communications and gain substantial information that, over time, would represent the equivalent of having specifically targeted a U.S. person. Therefore, the court concluded that querying has important Fourth Amendment implications that “counsel in favor of considering querying a separate Fourth Amendment event.” Acknowledging that such a conclusion presents “difficult and sensitive questions” that the court “does not purport to answer” or “canvass all the considerations that may prove relevant,” the Second Circuit concluded that it “cannot and should not go further,” electing to remand the case to the EDNY with a directive to determine whether any querying using Hasbajrami identifiers was lawful under the Fourth Amendment. As analytic guidance, the Second Circuit emphasized only the “flexibility” of the warrant requirement and stressed that “the ultimate touchstone of the Fourth Amendment is reasonableness.”

The EDNY opinion lost its way when the court ignored the Second Circuit’s “totality of the circumstances” approach used to “balance the degree to which [a search] intrudes upon an individual’s privacy” and “the degree to which it is needed for the promotion of legitimate government interests.” Instead, the EDNY opinion chose a law enforcement analytic framework to evaluate the querying of the Section 702 database. It emphasized the U.S. Supreme Court’s decision in Riley v. California observing that while the “ultimate touchstone of the Fourth Amendment is reasonableness,” “where a search is undertaken to discover evidence of criminal wrongdoing” reasonableness “generally requires the obtaining of a judicial warrant” because “in the often competitive enterprise of ferreting out crime” a warrant issued by a neutral, detached magistrate occupies a particularly important role in assuring the reasonableness of the search. But Riley was a prototypical law enforcement investigation involving a search incident to an arrest resulting in the seizure of Riley’s cell phone. None of the particulars of Riley resonate with the standard properly used to analyze the application of the Fourth Amendment to programmatic surveillance conducted to obtain foreign intelligence information to protect national security.

The FBI’s investigation of Hasbajrami, in turn, reached “well beyond any garden-variety law enforcement objective,” which, according to the Foreign Intelligence Surveillance Court of Review (FISCR), is a key feature distinguishing foreign intelligence surveillance from the more prosaic law enforcement setting. The EDNY court’s insistence, nonetheless, on applying a law enforcement analysis to the markedly different terrain of national security surveillance, and its unfamiliarity with the structure governing such surveillance, is revealed when it insists that simply acquiring communications does not permit the government to review those communications because “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.” Perhaps, here, the EDNY opinion echoes the Second Circuit’s expressed concern that the Section 702 database might be accessed “indiscriminately for domestic law enforcement purposes”—an equally ill-informed observation omitting any mention of how the FISC-approved querying procedures required by Section 702 prohibit such indiscriminate querying.

Both observations, by the Second Circuit and by the EDNY, capture those courts’ apparent unawareness that this “repository” of U.S. person communications acquired under Section 702 can be accessed only by queries complying with querying procedures specifically reviewed by the FISC for compliance with the Fourth Amendment’s requirement of reasonableness. Those querying procedures, including the minimization procedures in place at the time of the Hasbajrami surveillance, require that every query must be “reasonably likely to retrieve foreign intelligence information.” The Second Circuit’s lack of awareness on this point might be viewed as understandable given the “sparse record” it had available, but the EDNY was specifically tasked with ascertaining the pertinent facts and applying the proper Fourth Amendment analysis to those facts. Still, the EDNY opinion never mentions the querying standard that identifies the Hasbajrami queries as relating to a foreign intelligence, as opposed to law enforcement, undertaking. Nor does it explain why, if the government’s interest in Hasbajrami was principally criminal, the Hasbajrami communications retrieved from the Section 702 database were used to pursue a FISA-authorized surveillance and search as opposed to a criminal wiretap under Title 18. 

The EDNY’s mistaken approach colors its entire opinion. The EDNY insists the government has provided inadequate explanation for the time elapsing between the queries that retrieved Hasbajrami’s communications from the database, which thus indicates that the government’s investigation of Hasbajrami was not time sensitive and that procuring a warrant would not have interfered with that investigation. But foreign intelligence review and analysis are intrinsically more spontaneous and dynamic than the linear progression that apparently characterizes the EDNY’s experience with criminal investigations. Hasbajrami was not the target of the anti-terrorism investigation; instead, the Section 702 database was queried using his personal identifiers only as intelligence analysts determined that such queries were likely to retrieve foreign intelligence information that would shed light on the activities of those engaged in the “Islamic fundamentalist terrorism operations” that were the focus of the Joint Terrorism Task Force.

Congress authorized the FISC to provide judicial oversight of Section 702. Consequently, the FISC has more experience with Section 702 and the complex regulatory architecture designed to ensure its compliance with the Fourth Amendment than all other courts combined. The EDNY court pays lip service to the FISC’s expertise before declaring that it, too, can “competently address” the issues presented in the Hasbajrami remand. The EDNY opinion, however, reveals otherwise. In contrast to the EDNY’s fixation on the warrant requirement in a law enforcement setting, there is an abundance of jurisprudence from the FISC and the FISCR explaining that “while [t]he warrant requirement is generally a tolerable proxy for ‘reasonableness’ when the government is seeking to unearth evidence of criminal wrongdoing, ... it fails properly to balance the interests at stake when the government is instead seeking to preserve and protect the nation’s security from foreign threat.” Continuing, the FISCR has stated: “[W]e hold that surveillance of this type [involving, in that instance, the government’s use of pen registers and trap and trace devices to collect foreign intelligence] may be constitutionally reasonable even when it is not authorized by a probable cause warrant.” The FISCR also noted that “the idea that official intrusions calculated to preserve the nation’s security against foreign threat might require special constitutional treatment is not a new one.” Riley, a favorite EDNY precedent, is hardly the paradigm of a Supreme Court decision addressing the differing treatment that may be justified “to preserve the nation’s security against foreign threat.”

A better example is Carpenter v. U.S., in which, after concluding that the collection of cell site location information from third parties for law enforcement purposes constitutes a Fourth Amendment search requiring a warrant, the Court carefully excised “collection techniques involving foreign affairs or national security” from the scope of its ruling. Indeed, even the Supreme Court’s landmark 1972 decision in the Keith case (cited in the EDNY opinion), which provided much of the framework for the FISC as ultimately constructed by Congress, required prior judicial approval only for matters involving “domestic aspects of national security” while abjuring any view on “the issues which may be involved with respect to activities of foreign powers or their agents” and acknowledging “the view that warrantless surveillance, though impermissible in domestic security cases, may be constitutional where foreign powers are involved.” Unfortunately, having erroneously cabined Hasbajrami as a law enforcement matter, the EDNY opinion never manages to unpack the reality that electronic surveillance conducted for foreign intelligence purposes, and the querying of data acquired from such surveillance to obtain foreign intelligence information, is analyzed using an architecture that supplies the reasonableness required by the Fourth Amendment without the presumptive requirement of a warrant demanded in a garden-variety law enforcement investigation.

In the absence of a warrant, the reasonableness of programmatic surveillance conducted under the authority of Section 702 to acquire foreign intelligence is judged by examining the “totality of the circumstances” and balancing the nature of the governmental intrusion and how that intrusion is implemented against the individual privacy interests involved. Where the government is acting to protect national security, its interest is “of the highest order of magnitude.” Therefore, the focus of judicial review most often looks to the programmatic purpose served by the surveillance, whether that purpose serves a legitimate objective beyond routine law enforcement, whether a significant purpose of the surveillance is the acquisition of foreign intelligence information, whether that purpose would be “frustrated” by insisting upon a warrant, and whether the regulatory matrix of targeting, minimization, and querying procedures furnishes adequate safeguards to ensure that any privacy intrusion is reasonable under the Fourth Amendment. Thus, the foreign intelligence focus of Section 702 surveillance triggers an entirely different “reasonableness” assessment under the Fourth Amendment than that used for law enforcement purposes, and “the protections that limit access and use of incidentally collected Section 702 information can be decisive in assessing reasonableness under the Fourth Amendment.”

Curiously, while the Second Circuit applied this “totality of the circumstances” approach in concluding that the collection of Hasbajrami’s communications was reasonable under the Fourth Amendment, the EDNY opinion eschews this analytic framework. Charged with conducting a review of the circumstances surrounding the querying practices used in connection with the finding and extracting of Hasbajrami’s communications from the Section 702 database, the EDNY opinion provides no meaningful analysis of the protections embedded in the Section 702 architecture that “can be decisive” in assessing the reasonableness of that querying under the Fourth Amendment.

The critical restriction mandating that queries be “reasonably likely to retrieve foreign intelligence information” remains a cornerstone of FBI querying practice and precludes precisely the sort of indiscriminate rummaging through the Section 702 database that the EDNY opinion mistakenly insists necessitates a warrant.The EDNY opinion never substantively addresses this defining restriction in FBI querying procedures—one that “can be decisive in assessing reasonableness under the Fourth Amendment.” Instead, the opinion insists that “a warrant was presumptively required” pointing to “the legion of case law holding that a warrant is presumptively required for law enforcement to conduct a search.” It is this mistaken law enforcement approach that leads the EDNY to insist that the absence of a warrant produces a “backdoor” search that violates the Fourth Amendment. As every court to have considered the issue except those involved in the Hasbajrami case has concluded, the “backdoor search” is not a “search” at all in the legal sense of representing an event requiring separate Fourth Amendment consideration. Since the Second Circuit’s 2019 Hasbajrami decision, the FISC has repeatedly rejected the proposition that the “querying of information lawfully acquired under Section 702 be considered a distinct Fourth Amendment event requiring a reasonableness determination independent of the other circumstances of acquisition.” The FISC reiterated this stance in its April 2023 opinion when it stated, after acknowledging the Second Circuit’s position, that it would “respectfully adhere to the view that Fourth Amendment objectives are properly served ... by examining the reasonableness of such procedures as a whole” rather than isolating the querying process for separate Fourth Amendment inquiry. The EDNY court, which, like the Second Circuit, has a noticeably meager history with Section 702, simply ignores this entire line of FISC jurisprudence detailing the proper analytic approach to ascertaining the reasonableness of Section 702’s programmatic surveillance under the Fourth Amendment.

Similarly—in the context of queries employing U.S. person identifiers that are used to find and extract foreign intelligence information from the database of Section 702-acquired communications—this same “totality of the circumstances” analysis recognizes the existence of a foreign intelligence exception that exempts the query from the law enforcement-based warrant requirement. It also recognizes that the application of court-approved minimization and querying procedures serve to make the query’s intrusion into individual privacy interests “reasonable” when balanced against the government’s interest in national security—an interest repeatedly recognized by the courts as being of the “highest order.” Thus, even if the querying of the Section 702 database using U.S. person identifiers is considered an event triggering separate Fourth Amendment review, the proper standard for that review should mirror the “totality of the circumstances” analysis used to evaluate the underlying Section 702 acquisition.

The “Foreign Intelligence Exception”

Given its apparent impact on the misguided analysis and conclusions found in the EDNY opinion, it’s worth noting its heavily redacted review of the application of the foreign intelligence exception to the Section 702 collection at issue in Hasbajrami. The FISCR has analogized surveillance conducted for foreign intelligence purposes to the Supreme Court’s “special needs” cases and concluded that a foreign intelligence exception applies to the Fourth Amendment’s warrant requirement because (a) the national security purpose behind the surveillance transcends any garden-variety law enforcement objective and (b) there is a high degree of probability that a warrant requirement would hinder the government’s ability to collect time-sensitive information impeding vital national security interests. Bending to the weight of judicial precedent, the EDNY opinion recognizes the existence of the exception but limits that application solely to the collection of communications while insisting that the government failed to demonstrate that its need to query the database of stored Section 702 communications possessed the “immediacy” necessary to sustain the second prong of the exception that requiring a warrant would hinder the government’s ability to collect time-sensitive information.

This confoundingly illogical conclusion conflicts with multiple FISC opinions dating back to 2011 (coincidentally, the same year in which the Hasbajrami queries were conducted), which hold that “the acquisition of foreign intelligence information pursuant to Section 702 falls within the ‘foreign intelligence exception’ to the warrant requirement of the Fourth Amendment.” Nonetheless, while declaring that “there can be no legitimate debate that the protection of national security interests involved with foreign intelligence, as it pertains to both the surveillance and the querying of Section 702-acquired information, serve purposes that go beyond garden-variety law enforcement,” the EDNY opinion finds that the government’s failure to secure a warrant before querying the Section 702 database violated the Fourth Amendment.

Nothing demonstrates the EDNY’s unfamiliarity with the architecture of Section 702 more starkly than its conclusion that the collection of Hasbajrami’s communications satisfied the requirements of the foreign intelligence exception but the querying of the Section 702 database—that is essential to actually retrieve the communications needed to produce actionable foreign intelligence information—failed to satisfy that exception. According to the EDNY, “querying and surveillance represent entirely separate steps in the investigatory process.” This simply is not true. Collection and querying are essential steps in an integrated, carefully calibrated process that produces foreign intelligence information critical to national security. Each step requires the other to produce that foreign intelligence so, if the EDNY professes to understand that Section 702’s collection activities satisfy the foreign intelligence exception, it is incongruous that it does not recognize that querying, even if viewed separately, also meets the criteria for that foreign intelligence exception. Querying is how the intelligence community accesses the communications collected pursuant to authorized Section 702 acquisitions and learns the content of those communications and other details such as whether that content is encrypted. If intelligence analysts must seek a warrant before initiating a query using a U.S. person identifier (presumably from the FISC, which, as noted earlier, lacks the institutional resources to handle the volume of warrant requests generated by such a requirement), the ensuing delay will inevitably “hinder the government’s ability to collect time-sensitive information and, thus, would impede vital national security interests.”

This is precisely why the President’s Intelligence Advisory Board has described such a warrant requirement as “impractical” and “unjustified.” Considering the delays that a warrant requirement would inevitably introduce into the querying of the Section 702 database to retrieve communications and extract foreign intelligence from those communications, the EDNY opinion’s contention that “none of the concerns that the foreign intelligence exception was designed to address are present here” is dangerously ill conceived.

The EDNY opinion’s proffered rationale founders, again, on its insistence that law enforcement cases offer an appropriate framework for evaluating the propriety of the government’s querying of the Section 702 database to obtain foreign intelligence information. In its heavily redacted discussion on the foreign intelligence exception, the opinion points to a series of decisions in the law enforcement setting to conclude that the period during which the government used Hasbajrami identifiers to search the Section 702 database afforded ample opportunity to obtain a warrant and, accordingly, that those queries lacked the “immediacy” required to satisfy the foreign intelligence exception to the warrant requirement.

All of the legal support cited by the EDNY for this conclusion is drawn from law enforcement decisions, and it is clear from the EDNY opinion’s discussion that the EDNY viewed the queries as having been initiated to extract information from the Section 702 database that would support the criminal prosecution of Hasbajrami. The reported history of the case, however, shows that Hasbajrami was consorting with terrorists located abroad who were legitimate Section 702 targets and Hasbajrami was arrested as he was attempting to travel to Pakistan to join a terrorist group and fight against the United States. According to the Second Circuit, the government has a “manifest need to monitor the communications of foreign agents of terrorist organizations[,]” making the information derived from “communications of terrorist operatives abroad with persons inside the United States of particular importance.” Time-sensitive, dynamic, instantly reactive querying of the Section 702 database is the primary, and in many instances the only, way that the government can obtain this critical foreign intelligence since querying is the only way that foreign intelligence information is actually extracted from the database of lawfully acquired Section 702 communications.

*** 

Section 702 is arguably the nation’s most important foreign intelligence collection program—it is neither designed nor intended to have some ancillary law enforcement purpose. The word “warrant” never appears in Section 702; instead, the program operates under court orders issued by the FISC, which is specially constituted under FISA to hear all matters related to the conduct of electronic surveillance in the United States for foreign intelligence purposes. The communications at issue in the Hasbajrami case all were acquired by targeting a foreigner reasonably believed to be located outside of the U.S. with whom Hasbajrami was communicating. There is no dispute that the foreigner was properly targeted under Section 702, that the communications were legally acquired, and that the acquisition included the lawful incidental collection of Habajrami’s communications. The Second Circuit’s 2019 opinion makes all of this abundantly clear. 

Nonetheless, the EDNY opinion concludes that the querying process in Hasbajrami’s case violated the Fourth Amendment. Spawned from its mistaken application of Fourth Amendment law enforcement concepts unsuited to programmatic surveillance conducted to obtain foreign intelligence information, the EDNY’s resolution of the querying issue stands in stark contrast to more than a decade of rulings from other federal courts, including the FISC and the FISCR. 

Acceptance of the EDNY opinion as the constitutional standard governing the conduct of U.S. person queries of Section 702-acquired information will seriously undermine the utility of Section 702 as a foreign intelligence collection tool and especially cripple national security anti-terrorism and cybersecurity efforts. 

The mistaken approach producing the EDNY’s conclusion that the Fourth Amendment requires a warrant before using a U.S. person identifier to query the Section 702 database undermines the efforts Congress has made to provide enhanced statutory protections for querying precisely because Congress, like every court to have considered the question, does not see querying as a separate Fourth Amendment event.

After Section 702 was renewed by Congress in April 2024 without a warrant requirement, I wrote that the Second Circuit’s remand of the Hasbajrami case remained extant and that those insisting that the Fourth Amendment requires a warrant for U.S. person queries would be reenergized by any judicial decision supplying oxygen to their cause. The EDNY opinion represents such a ruling, and regardless of what appears from the opinion to have been a less than inspired presentation by the government, its flawed analysis and mistaken conclusions should not set the standard for what is certain to be a renewed confrontation over the Fourth Amendment’s impact on querying as Section 702’s sunset approaches in April 2026.