The court says the feds must obtain a warrant to search the FISA spy databases

One of the government’s most controversial warrantless spying practices does, in fact, require a warrant, according to a new federal court ruling.

U decisionissued Tuesday night by the Eastern District of New York Judge LaShann DeArcy Hall, comes in the case of Agron Hasbajrami, a resident of the United States who was arrested in 2011 and initially pleaded guilty to attempting to provide material support to an organization terrorist Hasbajrami appealed his case after learning that federal agents had obtained some of the evidence against him through a warrantless search of databases containing communications intercepted under the Foreign Intelligence Surveillance Act ( FISA).

FISA authorizes federal spy agencies to operate backdoors into Internet companies and electronic communications providers, such as Google, Meta, and Apple, through which they collect large amounts of communications. The act is supposed to minimize the collection of communications involving citizens and residents of the United States, but it has a variety of loopholes. Section 702 of the law specifically allows the government to collect communications that meet certain secret criteria without showing probable cause to believe that the persons communicating are not citizens or residents of the United States. Once collected, those communications can be stored in databases and searched later without, the federal government said, requiring a warrant.

Hasbajrami argued, and Judge DeArcy Hall agreed, that after-the-fact searches require a warrant when the target of the searches is a resident of the United States.

“To hold otherwise would effectively allow law enforcement to collect a repository of communications under Section 702 — including those of U.S. persons — that can later be searched upon request without limitation.” DeArcy Hall wrote.

Hasbajrami’s case has bounced around the federal court system for more than a decade. In 2018, a panel of the Second Circuit Court of Appeals ruled that the government’s warrantless collection of a US person’s communications through FISA is not a violation of the Fourth Amendment, yet that collection is an incidental consequence of the government monitoring a non- US person. But the court said it did not have enough evidence to decide whether the government should have obtained a warrant before searching databases of information collected under Section 702 of FISA for communications involving a specific U.S. person. , in this case, Hasbajrami.

The appeals court sent the case back to Judge DeArcy Hall, who reviewed the specific searches in question and found that the government had not proven it could not have sought and obtained a warrant to authorize it.

Civil liberties advocates hailed the ruling as a victory and called on Congress to reform FISA to make it explicitly clear that searches of the collected communications require a warrant.

“We expect every lawmaker worthy of that title to listen to what this federal court is saying and create a legislative mandate requirement so that the intelligence community does not continue to trample on constitutionally protected rights to private communications,” he wrote Andrew Crocker and Matthew Guariglia, of the Electronic Frontier Foundation.

Despite ruling favorably on the warrant requirements, Judge DeArcy Hall’s ruling did not grant Hasbajrami’s request to suppress evidence that federal agents gathered against him through their database searches of Section 702. She found that the agents acted in “good faith” under what was, until her decision, the prevailing law governing such searches.