Introduction

On January 21, 2025, the United States (“US”) District Court for the Eastern District of New York (“EDNY Court”) rendered a pivotal decision in the case of US v. Hasbajrami, with implications for warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Amendments Act 2008 (“FISA”). The decision, despite placing some restrictions on specific targeting, ultimately upholds the systemic privacy-infringing bulk warrantless surveillance framework.

Background

Hasbajrami, a US citizen, was arrested in 2011 for providing support to a terrorist organization and he pleaded guilty. While serving his sentence, it emerged that some FISA evidence stemmed from warrantless Section 702 surveillance, and in light of this information, he filed an appeal to the US Court of Appeals for the Second Circuit (“Second Circuit Court”) in 2018 seeking to exclude all such information.

Under Section 702, data collection occurs in two stages. First, the provision permits surveillance by intelligence agencies without a warrant targeting individuals who are not US persons and who are reasonably believed to be located outside the US. The second stage enables law enforcement agencies to access this collected data through “querying,” which involves searching agency-specific and cross-agency databases using specific keywords.

Judgments

The Second Circuit Court in US v. Hasbajrami 2019, held that warrantless data collection under Section 702 is permissible, even if it results in the “incidental collection” of a US person’s communications, provided the primary target is a foreign national located outside the US. However, the second step (querying) could, in certain instances, violate the Fourth Amendment right to privacy because it entails using specific keywords to filter and extract targeted information from the extensive data collected in the initial stage. The case was remanded back to the EDNY Court to determine whether the querying in Hasbajrami’s case was lawful.

The EDNY Court determined that a ‘query’ raised a distinct Fourth Amendment concern, necessitating a warrant unless exceptional circumstances justified otherwise. The Court dismissed the argument that ‘queries’ automatically qualify for the exception simply because they relate to foreign intelligence. It underscored that the warrant requirement must “frustrate the governmental purpose behind the search” to meet the standard.

The Court concluded that since the government failed to explain why its aims “would have been impeded by obtaining a warrant,” the initial query did not meet the requirements of the exception. However, the Court declined the defendant’s motion to suppress the resulting evidence on separate grounds.

Analysis

Despite the progressive holding, both decisions hold that there are no privacy implications for surveillance under Section 702 for individuals within the US, where it is considered incidental to the primary targeting. The Second Circuit Court relied on the “incidental overhear” doctrine for this assertion, which permits evidence of criminal activity outside the scope of an original warrant to be admissible. Nonetheless, the court clarified that if there was “reverse targeting”— targeting a US person indirectly by surveilling someone abroad—such actions would be unlawful. However, the Second Circuit Court found that Hasbajrami failed to meet the burden of proving reverse targeting. This burden is particularly difficult to satisfy given the lack of transparency surrounding Section 702 processes

Moreover, the “incidental overhear” doctrine suggests that collection is a de minimis or unintended byproduct of surveillance. However, this doctrine cannot be applied to the collection of data under Section 702. As the scale of communications intercepted is enormous, and far from being accidental, it is a direct result of the statute’s design. The government admitted to collecting over 250 million communications under this provision in 2011, and according to the ACLU the current number is likely over a billion. There are no effective safeguards in place to narrowly tailor this provision. This deliberate and systematic nature of surveillance raises serious privacy concerns.

The decisions of the Second Circuit Court and the EDNY Court could lead to certain modest but meaningful impediments for law enforcement in conducting warrantless “backdoor” searches, such as querying databases for information on individuals within US territory. However, the series of cases leaves intact the broader, systemic issues of mass surveillance. These rulings fail to address the opaque nature of surveillance operations conducted within a “black box” and the inverse relationship between the right (privacy) and the restrictions (foreign intelligence surveillance).