from the stay-in-your-own-lane,-g-men dept

The Second Circuit Court of Appeals has suggested -- not exactly ruled -- that backdoor searches of Section 702 collections targeting Americans (citizens and permanent residents) is a violation of the Fourth Amendment.

The case involves Agron Hasbajrami, a lawful permanent resident who was arrested in 2011 as he attempted to board a flight to Turkey. The government claimed Agron -- an Albanian immigrant -- was ultimately headed to Pakistan to join a terrorist organization.

Agron is somewhat of a unicorn. He's one of the few defendants that's actually been informed the evidence used against him was derived from NSA collections under Section 702. The DOJ is supposed to be proactive about this, but instead has chosen to emphasize parallel construction over transparency.

The evidence appears to have come from a backdoor search by the FBI. The FBI is allowed to access Section 702 collections, but domestic data and communications are supposed to be "minimized" to protect US persons swept up by the NSA. If the FBI performs backdoor searches to access Americans' communications that have been incidentally collected by the NSA foreign-facing surveillance programs, it should have to obtain a warrant. But that's not actually the case for a couple of reasons. First, very few defendants are ever informed of the true source of the evidence against them. Second, the secrecy shrouding the NSA's collections and the Intelligence Community's access prevents a lot of judicial examination in the few cases where evidence can actually be challenged.

The Second Circuit's ruling [PDF] kicks Hasbajrami's case back down to the lower court so it can reexamine the Fourth Amendment implications of warrantless backdoor searches. The Appeals Court has no problem with the NSA's collections, which putatively target foreigners. The court says these are lawful. Accessing collected communications from Americans via the NSA's collections, not so much.

The issue here isn't the collection itself or any inadvertent collection of US persons' communications. The problem is the querying of stored communications without a warrant when the target of the queries is a US person. The court doesn't say the FBI can't look at its own stored collections without a warrant to locate intelligence or evidence. Stuff it has already acquired is fair game, more or less. The court makes a physical analogy:

It is true the FBI does not need an additional warrant to go down to its evidence locker and look through a box of evidence it collected from a crime scene.

But that's where the analogy ends.

But lawful collection alone is not always enough to justify a future search.

Pointing to the Riley decision, the court notes that the lawful seizure of an arrestee's phone does not give law enforcement the right to perform a warrantless search of its contents.

Searching the FBI's own data stores tipped to it by the NSA isn't nearly as problematic as what the FBI appears to have done here: browsing the NSA's much larger collection without a warrant to find more communications originating from a US person. Say goodbye to any flattering "evidence locker" analogies.

If such a vast body of information [250 million emails as of 2011] is simply stored in a database, available for review by request from domestic law enforcement agencies solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.

And there's where the Fourth Amendment fits in:

To permit that information to be accessed indiscriminately, for domestic law enforcement purposes, without any reason to believe that the individual is involved in any criminal activity and or even that any information about that person is likely to be in the database, just to see if there is anything incriminating in any conversations that might happen to be there, would be at odds with the bedrock Fourth Amendment concept that law enforcement agents may not invade the privacy of individuals without some objective reason to believe that evidence of a crime will be found by a search.

The case returns to the lower court so it can consider the Fourth Amendment implications it chose to ignore when considering the defendant's motion to suppress evidence that is starting to look like it was acquired unconstitutionally.

If this results in suppression, this case is going to travel right back up the judicial ladder. There's no way the government is going to let its backdoor searches be subject to a warrant requirement. Warrants create paper trails, and the last thing the IC wants is more paperwork linking domestic surveillance to foreign-facing NSA collections. This isn't a win yet, but if the district court aligns itself with the Appeals Court's suggestions, it could be a game changer.

Filed Under: 2nd circuit, 4th amendment, agron hasbajrami, backdoor searches, evidence, fbi, nsa, parallel construction, section 702

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Second Circuit Says Warrantless Backdoor Searches Of NSA Collections Might Violate The Fourth Amendment - Techdirt