United States v. Agron Hasbajrami
Not provided in the text beyond docket number (2019)
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Rule of Law:
The warrantless collection of a United States person's communications does not violate the Fourth Amendment when it is incidental to the lawful foreign intelligence surveillance of a non-United States person located abroad. However, the subsequent querying of databases containing such lawfully collected information using a U.S. person's identifiers constitutes a separate Fourth Amendment event that must be reasonable.
Facts:
- Between April and August 2011, Agron Hasbajrami, a lawful permanent resident of the U.S., communicated by email with an individual he believed was a member of a terrorist organization.
- This individual, a non-American located abroad, was a target of government surveillance under Section 702 of the FISA Amendments Act.
- In their emails, Hasbajrami expressed his desire to join the terrorist group and fight against U.S. forces.
- The individual provided Hasbajrami with instructions on how to travel to Pakistan to join the organization.
- Hasbajrami discussed his plans to travel to Turkey as a first step and packed a tent, boots, and cold-weather gear for his trip.
- On September 6, 2011, Hasbajrami went to John F. Kennedy International Airport to board a flight to Turkey.
Procedural Posture:
- Agron Hasbajrami was charged in the U.S. District Court for the Eastern District of New York with attempting to provide material support to a terrorist organization.
- After the government gave notice of its intent to use FISA-derived evidence, Hasbajrami pleaded guilty and was sentenced to 180 months in prison.
- While Hasbajrami was serving his sentence, the government disclosed for the first time that some evidence was derived from warrantless surveillance under Section 702 of the FISA Amendments Act.
- The district court granted Hasbajrami's motion to withdraw his guilty plea.
- Hasbajrami then moved to suppress all evidence obtained or derived from the warrantless Section 702 surveillance.
- The district court denied the motion to suppress.
- Hasbajrami entered a conditional plea of guilty, reserving his right to appeal the district court's denial of his suppression motion.
- Hasbajrami appealed the denial of his suppression motion to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the warrantless collection of a United States person's communications, when it is incidental to the lawful surveillance of a non-United States person located abroad under Section 702 of the FISA Amendments Act, violate the Fourth Amendment?
Opinions:
Majority - Lynch, J.
No, the incidental collection of a United States person's communications during lawful foreign intelligence surveillance of foreigners located abroad is not a per se unreasonable search and does not violate the Fourth Amendment. The court reached three conclusions. First, regarding 'incidental collection,' a warrant is not required. This is based on two principles: the Fourth Amendment's warrant requirement does not apply extraterritorially to the surveillance of non-U.S. persons abroad (United States v. Verdugo-Urquidez), and under the 'incidental overhear' doctrine, law enforcement does not need a new warrant to collect communications of previously unknown individuals discovered during a lawful wiretap. The collection is also 'reasonable' because the government's compelling interest in national security and monitoring foreign terrorist threats outweighs the U.S. person's privacy interest in communications with that foreign target. Second, regarding 'inadvertent collection' (mistakenly targeting a U.S. person), the court declined to rule on the novel constitutional questions it raises, finding that any such collection in Hasbajrami's case was harmless beyond a reasonable doubt as it was brief and the information was not used in the investigation. Third, the court held that 'querying' databases of lawfully collected Section 702 information is a separate Fourth Amendment event that must be reasonable. It rejected the idea that lawfully obtained data can be searched without restriction, noting the vast scope of Section 702 collection and the privacy implications of allowing domestic law enforcement to search these troves of data using U.S. person identifiers. Because the record was insufficient to determine if any queries regarding Hasbajrami were conducted and if they were reasonable, the court remanded the case for further fact-finding on this issue.
Analysis:
This decision solidifies the constitutionality of the 'incidental collection' of U.S. persons' data under Section 702, aligning the Second Circuit with other courts that have upheld this aspect of the surveillance program. Its most significant contribution, however, is establishing that querying government databases of foreign intelligence is a distinct 'search' under the Fourth Amendment that requires its own reasonableness analysis. This ruling rejects the government's position that it has free rein to search data it has already lawfully collected and creates a crucial check on 'backdoor searches' of U.S. persons. By remanding for factual development on the nature of any queries, the opinion sets the stage for future litigation that will define the specific limits and standards of reasonableness for government searches of its vast repositories of collected communications.
