The Second Circuit Rules in United States v. Hasbajrami

[Recursion]

https://www.lawfareblog.com/second-circuit-rules-united-states-v-hasbajrami

On Dec. 18, 2019, the U.S. Court of Appeals for the Second Circuit issued a decision in United States v. Hasbajrami—a case challenging the constitutionality of collecting, storing and querying intelligence on U.S. persons as part of the warrantless surveillance program authorized by Section 702 of the Foreign Intelligence Surveillance Amendment Act of 2008, commonly referred to as Section 702. Judge Gerard Lynch, writing for a unanimous panel, ruled that the “incidental collection” of a U.S. person’s communications under Section 702 is permissible when the primary target of the surveillance is a non-U.S.-based foreign national. But the court also acknowledged that, in some instances, querying government databases for evidence related to a U.S. person could violate the Fourth Amendment. As such, the Second Circuit remanded the case so that the lower court could develop a more complete record and determine if the government’s querying of data collected under Section 702 in the Hasbajrami investigation violated the Fourth Amendment.

The Foreign Intelligence Surveillance Act (FISA) governs the collection and use of information gathered in the course of national security investigations. In order to initiate what the Second Circuit refers to as “traditional” FISA surveillance on a U.S. citizen or resident, the government must submit an application to the Foreign Intelligence Surveillance Court (FISC) demonstrating that there is probable cause to believe “the target of the surveillance is a foreign power or agent of a foreign power.” Once a FISA warrant is approved, evidence derived from it can be admissible against a defendant in court.

However, when the government is conducting surveillance on non-U.S. persons located abroad, FISA Section 702 states no probable cause determination is necessary. Instead, the FISC only reviews surveillance procedures and rarely rules on individual cases.

Section 702 forbids intentionally targeting a U.S. citizen or anyone in the United States, or collecting information on non-U.S.-based foreign nationals with the goal of obtaining information related to a U.S.-based person or U.S. citizen. But, even proper Section 702 collection can, and regularly does, result in the incidental collection of communications between the targeted non-U.S.-based foreign national and U.S. persons with whom that foreign national is communicating.

The courts keep circling back to this and I don't see a way around the fundamental problem: there is not in general a constitutional protection for non-US persons against US government surveillance, but non-US persons talk to US persons all the time, meaning the collection is always going to include US persons. The idea that it is not a 4th amendment violation to collect but it is to query is kind of amusing but also AFAICT the only idea that legally makes any sense.

[bucolic_frolic]

1. Never did understand

how information collected incidentally couldn't be sequestered and made unactionable, but yeah, not very realistic I guess.