FISA: 702 Collection

The Second Circuit Rules in United States v. Hasbajrami

By Jacques Singer-Emery
Tuesday, January 7, 2020, 8:00 AM

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.

Background

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.

In this case, the government targeted for surveillance under Section 702 an undisclosed member of a terrorist organization based in Pakistan and subsequently collected numerous communications between that undisclosed individual and Hasbajrami, who was living in the United States. The government opened a separate investigation into Hasbajrami and obtained traditional FISA warrants targeting him. Pursuant to this second set of warrants and information already collected under Section 702, the government learned Hasbajrami hoped to join a terrorist group, receive training, and ultimately fight against U.S. forces and others in Afghanistan and Pakistan. Hasbajrami was arrested on Sept. 6, 2011, when he tried to board a flight to Turkey, and pleaded guilty to attempting to provide material support to a terrorist organization on April 12, 2o12.

While Hasbajrami was serving his sentence, the government disclosed that some of its FISA warrant applications contained information from its surveillance under Section 702 of the person with whom Hasbajrami was corresponding. Based on this information, Hasbajrami moved to withdraw his initial guilty plea—which the district court allowed—and to suppress any evidence obtained from these warrants. The district court denied the second motion and Hasbajrami entered a conditional plea of guilty that allowed him to appeal the ruling.

The Court’s Reasoning

Hasbajrami presented the Second Circuit with three challenges to the lower court’s admission of evidence derived from the warrantless surveillance of a non-U.S.-based foreign national under Section 702:

  • First, opposite the district court’s reasoning, using communications of U.S. persons “incidentally” collected during the warrantless surveillance of non-U.S.-based foreign nationals violates the Fourth Amendment.
  • Second, the district court never addressed the constitutionality of allowing the government to “inadvertently” target U.S. persons for collection when government agents mistakenly believe they are surveilling a non-U.S.-based foreign national.
  • Third, even if a U.S. person’s data could be “incidentally” or “inadvertently” collected under Section 702 without a warrant, in this specific case, the government did not have probable cause to then search for Hasbajrami’s communications in its systems.

In responding to Hasbajrami’s first challenge, the Second Circuit relied on the U.S. Court of Appeals for the Ninth Circuit’s approach in United States v. Mohamud. Following the structure of Mohamud, the court first looked at whether a warrant is required for the government’s incidental collection of a U.S. person’s communications. Next, even if a warrant is not required, the court considered whether the government’s collection was reasonable in its scope and manner of execution.

Reviewing the first issue, the Second Circuit relied on two well-established principles of Fourth Amendment law to conclude that the incidental collection of Hasbajrami’s correspondence was lawful. First, in United States v. Verdugo-Urquidez, the Supreme Court ruled that the Fourth Amendment warrant requirement did not apply to the extraterritorial searches of non-U.S. persons. Second, under the incidental overhear doctrine, as established by the Supreme Court in United States v. Donovan, when law enforcement agents obtain information of other criminal activity outside an original warrant’s scope, that evidence is admissible.

From these two doctrines, the Second Circuit reasoned that a warrant was not required to view Hasbajrami’s correspondence because the correspondence was lawfully collected during a warrantless investigation targeting a non-U.S. person under Section 702 and analyzed within the permissive parameters of the incidental overhear doctrine.

The Second Circuit emphasized that Verdugo-Urquidez applies despite the fact that Section 702 collection occurs inside the United States because the foreign national with whom Hasbajrami was communicating did not have an expectation of privacy given his location abroad. The court added that even if the government “expected” to intercept U.S.-linked communications when it targeted the non-U.S. person, this expectation did not de facto invalidate the collection. Rather, the court held that Hasbajrami needed to show the government was targeting the non-U.S. person as a pretext to collect his emails—which Hasbajrami failed to do.

Finally, the Second Circuit concluded that because the “incidental overhear” doctrine stands for the proposition that the government need not obtain multiple warrants to intercept protected communications, “once the initial surveillance was rendered lawful” under Section 702, an additional warrant was not necessary to view Hasbajrami’s correspondence with the targeted foreign national.

After establishing a warrant was not required for the government’s incidental collection of Hasbajrami’s communications, the Second Circuit reached the second question established by the Ninth Circuit in Mohamud and held the government's collection was reasonable in its scope and execution.

The Second Circuit assessed the reasonableness of the government's search by applying the standard established by its 2008 ruling in In re Terrorist Bombings. This approach weighs the degree to which a search intrudes upon an individual's privacy against the degree to which that search is needed for the promotion of legitimate government interests. The Second Circuit observed that U.S. persons ordinarily have an expectation in the privacy of their emails sufficient to trigger a Fourth Amendment reasonableness inquiry. But the court held in the case of targeting a non-U.S. person who is believed to be a member of a terrorist organization, that privacy interest is outweighed by the government's “manifest need to monitor.” Specifically, the court recognized that it is reasonable for intelligence agencies to monitor the communications of suspected foreign terrorists abroad, and that need does not lessen because some of the suspect’s contacts turn out to be U.S. persons.

Next, the court discussed Hasbajrami’s challenge that the government’s inadvertent collection of his communications under Section 702 was unlawful. The court pointed to one instance in which the National Security Agency mistakenly believed a target of its collection was a non-U.S.-based foreign national; the agency collected communications from this account, including messages with Hasbajrami. The Second Circuit observed that this inadvertent targeting of an account owned by a U.S. person for warrantless surveillance under Section 702 “raises complicated questions.” For example, is the Fourth Amendment violated if the government unreasonably concludes the targeted account is held by a non-U.S. person located abroad?

The court did not reach these questions, however. Instead, it held that in this case any error in the government’s inadvertent collection was harmless. None of the materials collected during the inadvertent targeting were used when the government applied for a traditional FISA warrant to surveil Hasbajrami. Additionally, before the government realized it was inadvertently collecting on an account owned by a U.S. person, it terminated the collection because no valuable intelligence was obtained.

But the Second Circuit still remanded the case because the district court’s record did not show whether the government acted reasonably when it queried its databases for information linked to Hasbajrami. Specifically, the Second Circuit rejected the district court’s conclusion that government minimization procedures during Section 702 collection make any future database querying reasonable. Querying constitutes a separate Fourth Amendment event from collection, the court argued, and must be independently reasonable just as a new collection is.

To support this conclusion, the Second Circuit observed that Section 702’s sweeping technological capacity and broad scope mean that a vast body of information, unrelated to the original investigation, is stored and available on government databases. The court added that, without a FISC order or a clear statement of probable cause, law enforcement could query this database with only the “speculative possibility” that evidence might be found on U.S. persons of interest. The Second Circuit reasoned that using Section 702 surveillance capabilities in this manner would turn the program into a “dragnet” designed to collect information on U.S. persons in violation of the Fourth Amendment.

Consequently, the Second Circuit ruled the district court needed to develop the record to determine whether any search of Section 702-collected data violated the Fourth Amendment. To this end, the Second Circuit held the district court should conduct whatever proceedings are necessary to determine what (if any) evidence relevant to Hasbajrami the government initially obtained by querying its databases; whether any such querying violated the Fourth Amendment; and, if it did, whether the violation allowed the government to collect additional evidence that might now be tainted.

Hasbajrami’s Conditional Guilty Plea

After remanding the case, the Second Circuit vacated Hasbajrami’s plea and sentence, pointing to its prior reasoning in United States v. Wong Ching Hing. In Wong Ching Hing, the Second Circuit vacated the defendant’s conditional guilty plea when it remanded the case because it was unclear whether the plea was “conditional upon the government’s being successful in admitting all of the [defendant’s] statements or any one of them.” Similarly, Hasbajrami’s guilty plea was conditional on losing his motion to suppress the evidence obtained from the FISA warrant—but it is unclear how much evidence would have been suppressed had he succeeded and how this would have affected his decision to plead guilty.