FBI’s Warrantless Search Ruled Unconstitutional in a Blow to Government Spying
A case that started a decade ago with a New York City man's arrest at John F. Kennedy Airport for allegedly trying to join a Pakistani terrorist group has now dealt a setback to government spying powers.
In a decision that could feed into a looming fight over government surveillance, a federal court ruled last month that FBI agents violated the man's constitutional rights when they searched National Security Agency databases for information on him dozens of times without a warrant.
The decision gives a boost to the surveillance critics who have long asked Congress to impose a warrant requirement on backdoor" searches of NSA data collected under Section 702 of the Foreign Intelligence Surveillance Act, known as FISA.
Donald Trump's nominee to lead the FBI, Kash Patel, has called for major reform" of Section 702. He faces a Thursday confirmation hearing where surveillance hawks on the Senate Intelligence Committee could grill him about that position. Trump's other nominees, however, have lined up to back the law.
The parties to the New York City case have not signaled whether they intend to appeal the ruling in the case against Agron Hasbajrami, who remains imprisoned. But if it stands, the decision could play a role in the congressional debate over the spying law when it expires in April 2026.
This is a major constitutional ruling on one of the most abused provisions of FISA."
This is a major constitutional ruling on one of the most abused provisions of FISA," Patrick Toomey, the deputy director of American Civil Liberties Union's National Security Project, which filed a friend-of-the-court brief in the case, said in a statement. As the court recognized, the FBI's rampant digital searches of Americans are an immense invasion of privacy, and trigger the bedrock protections of the Fourth Amendment. Section 702 is long overdue for reform by Congress, and this opinion shows why."
Hasbajrami was arrested in September 2011 as he was trying to fly from JFK to Istanbul, where prosecutors said he planned to fly onward to Pakistan to join a terror group.
His guilty plea and sentencing in January 2013 seemed to settle the case, until the revelations of NSA contractor Edward Snowden months later forced prosecutors to admit that they had failed to disclose the use of surveillance ostensibly directed at foreigners to build the case against him.
Prosecutors admitted that the FBI agents on Hasbajrami's case had trawled NSA databases to turn up key information on him, without applying for a warrant.
Hasbajrami's appeal of his guilty plea offered a rare opportunity to mount a legal challenge to a spy regime that is often so shrouded in secrecy that it cannot be challenged in court, per Supreme Court precedent.
U.S. District Court Judge LaShann DeArcy Hall ruled only last month on the constitutionality of the FBI's searches. Her decision was released Tuesday in heavily redacted form.
Hall zeroed in on the process by which domestic law enforcement agencies such as the FBI can comb through foreign surveillance databases.
The government argues that the FBI is free to search those databases for information on Americans as long as it follows certain guidelines, and as long as the surveillance originally targeted foreigners outside the U.S. Such surveillance often collects the phone calls, emails, and text messages of U.S. citizens or legal residents such as Hasbajrami communicating with foreigners.
Privacy advocates have long contended that those backdoor" searches are an end-run around the Fourth Amendment, which guarantees the right of Americans to be free from unreasonable invasions of privacy. Hall said that in Hasbajrami's case, she agreed.
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," Hall said.
Hall said that in an investigation that stretched for months, there was no reason why the government could not have sought a warrant. Still, she declined to suppress the emails collected as part of the FBI investigation, finding that FBI agents were acting in good faith" based on their understanding of the law when they conducted their searches.
The mixed ruling is a boon for civil liberties advocates but does not help Hasbajrami, whose attorneys did not immediately comment on whether he will appeal. They filed a letter in the court record Friday asking Hall to allow them to view parts of her redacted decision.
Related Counterterror Director Used Hamas Attack to Justify Mass Surveillance Program Renewal Andrew Crocker, an attorney at the Electronic Frontier Foundation, which joined the ACLU in filing in a brief in support of Hasbajrami, said the judge's decision tracked closely with the arguments that surveillance advocates have been making for years. They have fought a nearly decadelong battle in Congress to force law enforcement to obtain a warrant before searching the databases, coming within one vote of victory last year.
The surveillance law will be up for debate again in April 2026. Liberal critics of the law hope to join forces with MAGA skeptics of government overreach to add the warrant provision - and Crocker said he thinks the court's ruling will help.
This would be front-and-center in any argument that Congress needs to impose a warrant requirement for these backdoor searches. You have a federal court saying as much, and that tends to be the kind of thing that Congress takes note of," he said.
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