Section 702 Memorandum and Order - U.S. v. Hasbajrami (11-cr-00623-LDH)

BROOKLYN, N.Y. — In a long-awaited ruling in United States v. Hasbajrami, the U.S. District Court for the Eastern District of New York last night held that warrantless queries — or searches — conducted under Section 702 of the Foreign Intelligence Surveillance Act violated the Fourth Amendment. The ruling is the first of its kind, and it follows years of public revelations about how Section 702 has been used by the government to conduct warrantless surveillance of Americans, including protesters, members of Congress, and journalists. The court's opinion addresses numerous queries the FBI conducted of the defendant, Mr. Agron Hasbajrami, during an investigation years ago. The government initially hid its use of Section 702 in Mr. Hasbajrami's case and others, reversing course only after the Department of Justice's policy of wrongly concealing Section 702 surveillance in criminal cases came to light. “This is a major constitutional ruling on one of the most abused provisions of FISA,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “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.” The decision follows a groundbreaking 2019 ruling by the Second Circuit Court of Appeals, which recognized that Section 702 queries of people in the United States are searches that trigger separate Fourth Amendment scrutiny. The court of appeals sent the case back to the lower court for further constitutional analysis, culminating in yesterday’s ruling. While the new opinion holds that the FBI’s Section 702 queries violated the Fourth Amendment, the court ultimately denied the defendant's motion to suppress the resulting evidence on separate grounds. The American Civil Liberties Union and the Electronic Frontier Foundation filed an amicus brief in support of Mr. Hasbajrami in the Second Circuit.