On August 27, the U.S. Court of Appeals for the Second Circuit heard argument in United States v. Hasbajrami, a case that raises several challenges to the constitutionality of surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA). In January 2018, Congress enacted the FISA Amendments Reauthorization Act, which reauthorized Section 702 for another six years without making any significant reforms to this surveillance program. The Second Circuit now has the opportunity to address some of the serious Fourth Amendment issues that Congress ignored, and the argument provided some insight into the court’s perspective.
The Hasbajrami case involves a prosecution for providing material support to terrorists. The defendant challenges the government’s use of evidence collected under Section 702, arguing that this violates his Fourth Amendment rights. Section 702 authorizes the government to target non-U.S. persons (people who are not U.S. citizens or legal permanent residents) located abroad to collect their communications. Hasbajrami is a U.S. person who was present in the United States at the time the 702 evidence was collected, and therefore he could not have been a legal target under Section 702. The government states that it collected Hasbajrami’s emails “incidentally” when he communicated with non-U.S. persons located abroad who were 702 targets. The evidence gathered under Section 702 was subsequently used by the government in support of its applications under Titles I and III of FISA to target Hasbajrami directly for surveillance. In contrast to Section 702, these titles of FISA permit surveillance of U.S. persons when the FISA Court finds there is probable cause to believe the target is a foreign power or an agent of a foreign power. Hasbajrami argues that gathering the Section 702 evidence against him violated his Fourth Amendment rights as a U.S. person, and therefore the government cannot rely on this evidence, and that the Section 702 evidence should not have been available to support the government’s Title I and Title III applications.
Hasbajrami, and the American Civil Liberties Union and Electronic Frontier Foundation who are jointly participating as amici, assert several important constitutional challenges to the use of Section 702 evidence in this case. Their arguments include disputing the government’s theory that collection of U.S. person information can be justified under the “incidental overhear” doctrine, which provides that if someone is in contact with a target for whom the government has a warrant, the warrant covers the “incidental” collection of the non-targeted person’s communications and authorizes the government to use the evidence against the non-target as well. Others have previously explained the flaws in applying the “incidental overhear” doctrine to the Section 702 context and in using a targeting-based approach to Fourth Amendment analysis. Specifically, application of the incidental overhear doctrine istroubling in the context of Section 702 because under this program, the FISA court does not issue warrants and only approves “certifications” of broad categories of foreign intelligence information that the government may seek. Moreover, the fact that the government may be targeting someone who does not possess Fourth Amendment rights is not relevant to the question of whether the collection violates the constitutional rights of the U.S. person on the other end of the communication.
The defendant and amici also contest the government’s practice of warrantlessly searching through collected 702 data to identify and compile information regarding a specific U.S. person, and a significant portion of the oral argument focused on this issue. This is one of the key constitutional challenges raised in the Hasbajrami case, because the procedure demonstrates how the government relies on 702 surveillance in investigations of U.S. persons, and not just of foreigners. The government refers to this practice as conducting a “U.S. person query,” through which it “queries” or searches through collected information using a U.S. person identifier without any judicial review. Privacy advocates have described this technique as a “backdoor search.” While admittedly loaded, the term provides a clearer picture of how the government is attempting to evade the individualized judicial review that the Fourth Amendment generally requires.
Elizabeth Goitein’s preview of the Hasbajrami argument explains several notable defects in the government’s defense of warrantless U.S. person queries, but there are further critical weaknesses that are important to recognize. The government acknowledges that given the possibility of “incidental collection” of U.S. person information, the Fourth Amendment applies to Section 702 collection. The government contends that the applicable test is simply the Fourth Amendment’s reasonableness test, and that Section 702 meets this test. The government further argues that as a result, information acquired under the program is lawfully collected, and that thereafter, it is permitted to search through its troves of 702 data without any independent review. Yet even if we accept the government’s position that there is a foreign intelligence exception to the Fourth Amendment’s warrant requirement – a question not yet decided by the Supreme Court – so that Section 702 collection does not require individualized warrants prior to collection, the government’s reasoning supporting the constitutionality of U.S. person queries should be rejected as circular.
Under the Fourth Amendment’s reasonableness test, the constitutionality – and thus the lawfulness – of the original Section 702 collection depends upon the totality of circumstances, and this totality includes the strength of post-collection safeguards for collected data. Since there is no individualized judicial review of any Section 702 target, the back end safeguards must be extremely robust in order to protect the constitutional rights of U.S. persons. Otherwise, the initial collection also violates the Fourth Amendment’s reasonableness test.
The Second Circuit judges asked during oral argument for a doctrine that supports requiring a warrant at the back end to search through lawfully collected data. The ACLU’s attorney supplied several rationales during the argument, including noting that under Riley v. California, the government must seek a warrant before searching the contents of a cell phone, even though it took custody of the phone through a lawful arrest of its owner. In addition, the court can and should rely on the Fourth Amendment reasonableness test itself. Since the government anticipates collecting significant amounts of communications involving U.S. persons under Section 702, the initial collection is not lawful under the reasonableness test unless the minimization procedures at least require individualized FISA Court review prior to conducting a U.S. person query. The minimization procedures governing queries are not simply tacked on after the fact to address the handling of lawfully collected communications; rather they are part and parcel of the package needed to meet constitutional requirements.
It is true that the FISA Court of Review addressed the overall reasonableness of Section 702’s predecessor program in In Re Directives in 2008, and concluded that surveillance under the Protect America Act satisfied the reasonableness test. However, that case did not consider the practice of searching for information regarding particular U.S. persons, and the package of safeguards under the earlier program included several stronger protections that are absent under Section 702, such as a requirement that in each case, the Attorney General “first had to make a determination that probable cause existed to believe that the targeted person is a foreign power or an agent of a foreign power.” Under Section 702, no one makes an individualized probable cause finding regarding particular targets, and government agents may target any non-U.S. person located abroad provided it is for the purpose of collecting foreign intelligence information within one of the broad categories approved by the FISA Court.
The courts that have considered the constitutionality of U.S. person queries in the context of criminal prosecutions may have lacked a clear picture of how Section 702 minimization works, as well as the extent to which a query seeking information regarding a specific U.S. person constitutes a further privacy intrusion. In United States v. Mohamud, an earlier criminal prosecution that relied upon Section 702 evidence, the district court stated that “The government notes the minimization procedures compel it to review information lawfully collected under § 702, which includes information about U.S. persons, to determine if the information should be retained or disseminated.” But, this is only partially correct, and is therefore misleading. As the Privacy and Civil Liberties Oversight Board’s (PCLOB) Report on Section 702 clarified, government agents are only required to routinely review a sampleof the communications they collect under Section 702 (PCLOB Report at 48), and the government does not routinely review most of the information collected. Queries provide a tool for searching through unminimized evidence, which is information that has not yet been subject to human review (PCLOB Report at 55). These facts undermine the government’s argument before the Second Circuit in Hasbajrami that conducting a query “is not a significant additional intrusion on a person’s privacy, beyond the level of intrusion that has already resulted from the government’s collection and review of the information pursuant to court-approved targeting and minimization procedures.” (Government Brief at 71) In reality, under Section 702, much information will only be reviewed if it is returned in response to a query.
The publicly available unclassified record in this case does not make clear how the government may have relied upon a U.S. person query in order to identify and compile all of the information it had collected on Hasbajrami under Section 702. But it is “routine practice” for the FBI, at early stages of investigations, to conduct U.S. person queries that search through collected 702 information. (PCLOB Report at 137) Moreover, the district court’s opinion stated that “the government obtained—pursuant to Section 702 surveillance—many email communications between Hasbajrami and non-U.S. persons reasonably believed to be located outside the United States” and relied upon these emails in support of its Title I and Title III applications. Since the court stated that the emails were between Hasbajrami and “non-U.S. persons,” using the plural, this suggests that the government compiled communications between the defendant and several 702 targets. It is possible that one particular government agent was responsible for all these targets and actually reviewed emails between Hasbajrami and each of them as part of the routine sampling process or through a more intensive review of particular targets. However, another perhaps more likely scenario, would be that once Hasbajrami was identified in an email with one particular target, or once he came to the attention of the government through some other investigatory technique, the government then conducted a U.S. person query to identify and compile all of the “many email communications between Hasbajrami and non-U.S. persons” collected under Section 702 that formed the evidence supporting the government’s applications under FISA Titles I and III.
The government suggested during the argument that the Second Circuit does not need to reach the question of whether backdoor searches are legal. Yet the government’s attorneys have consistently refused to state that they did notuse a U.S. person query in investigating Hasbajrami. The government’s brief makes no such statement, and instead argues that this practice has been upheld by the FISA Court. (Government Brief at 79 – 80) During oral argument, the government’s attorney stated that this case is “not a criminal case that arose from a so called backdoor query.” But this amounts to careful legal wording that is essentially meaningless. Government agents may have first become aware of Hasbajrami through other means, but if they subsequently used a U.S. person query to identify and compile the evidence against Hasbajrami for use in their Title I and Title III applications, that backdoor search would be highly relevant to the court’s analysis.
Similarly, when asked whether the case “resulted from a backdoor search or not,” the government’s attorney stated that it had not resulted from one. But this is not the correct question for determining whether backdoor searches are at issue in this case. Ultimately, the government’s attorney offered that if the record on the use of backdoor searches in this case is ambiguous, he could provide supplemental briefing to clarify the issue. Again, he did not deny that a U.S. person query had been used to identify and compile the emails collected under Section 702 that were used as evidence against Hasbajrami.
These facts matter, and the Second Circuit should require the government to specifically address on the public record whether it conducted a U.S. person query at all, and how exactly that query contributed to its subsequent investigation. U.S. persons are entitled to Fourth Amendment protection for their communications. If the government identified and compiled evidence by warrantlessly searching through 702 information for Hasbajrami’s communications in violation of the Fourth Amendment, the fruit of the poisonous tree doctrine would prohibit the government from relying on that evidence.
Finally, the court should reject the government’s argument that it would simply be too cumbersome to seek FISA court review for every U.S. person identifier. As the ACLU’s attorney stated during oral argument, there are several practical models that have been suggested to provide for such judicial review, and the court can simply require the government to develop a procedure. Further, the court should not fear, as was suggested at oral argument, that barring warrantless U.S. person queries would mean that the government would have to destroy every U.S. person communication it came across prior to obtaining a warrant. The court could permit retention of these communications and simply bar their use until after the government had obtained FISA court approval.
The permissibility of U.S. person queries or backdoor searches was central to the recent reauthorization debate in Congress, although in the end, Congress reauthorized the program without any meaningful reforms to the practice. Hopefully, the Second Circuit will now remedy the Fourth Amendment threats that Congress disregarded.