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EFF and ACLU Ask Appeals Court to Find Section 702 Surveillance Unconstitutional

October 24, 2017

EFF and ACLU Ask Appeals Court to Find Section 702 Surveillance Unconstitutional

As Congress considers reforming Section 702, the NSA’s warrantless surveillance authority, EFF and ACLU are asking a federal court of appeals in New York to find this surveillance unconstitutional. Section 702 allows the government to collect billions of electronic communications—including those of Americans—and to use these communications in criminal investigations, all without a warrant. Our amicus brief in United States v. Hasbajrami argues that this practice represents an end run around the Fourth Amendment, which protects the privacy of e-mail and other electronic communications.

Agron Hasbajrami is a U.S. resident who was arrested at JFK airport in 2011 on his way to Pakistan and charged with providing material support to terrorists. Although the government used Section 702 to build its case against Hasbajrami, it withheld this fact from his lawyers. Only after the Snowden revelations (and after conviction) did the government inform a handful of defendants, including Hasbajrami, that they had been subject to warrantless surveillance. Hasbajrami is now in front of the Second Circuit Court of Appeals, which will be the second appeals court to review the legality of Section 702 surveillance after the Ninth Circuit’s misguided decision in United States v. Mohamud last year.

These cases demonstrate that the government engages in a kind of do-si-do to avoid getting a warrant to spy on Americans. 

These cases demonstrate that the government engages in a kind of do-si-do to avoid getting a warrant to spy on Americans. Section 702 requires only that the government “target” foreigners located outside the U.S., people who generally lack Fourth Amendment rights. But nothing in Section 702 stops the government from eavesdropping on the communications between these targets and Americans, so long as it doesn’t intentionally target specific Americans. As a result, millions of Americans’ communications are “incidentally” swept up in Section 702 and then placed into databases that are accessible to law enforcement like the FBI. The FBI then routinely searches those databases during criminal investigations, known as a “backdoor search.” 

It’s worth underscoring how unusual this all is: under other circumstances where the government set out to investigate an American and to conduct surveillance of their email, it would need a warrant, regardless of who the American was talking to. Only Section 702 allows it to sidestep that process, and the volatile combination of incidental collection and backdoor search makes available a vast array of private communications that are supposed to be protected by the Fourth Amendment.

The government has invented a series of baseless justifications for zeroing out Americans’ privacy: It has claimed that eavesdropping on a conversation is equivalent to having an informant report what the conversation was about. Of course, if that were true, no warrant would ever be required for wiretapping. Refining that argument slightly, it next claimed that because its targets have no Fourth Amendment rights, it is entitled to incidentally “overhear” communications involving Americans who otherwise have Fourth Amendment protection. But again, the Supreme Court has made clear that wiretapping is extremely dangerous and must be closely supervised by a court to avoid sweeping in innocent bystanders. Under Section 702, however, the Foreign Intelligence Surveillance Court does not approve targets, nor does it ensure that incidental collection is kept to the minimum required by the Supreme Court. Finally, the government has argued that the Fourth Amendment’s warrant requirement simply doesn’t apply to Section 702 because communications are acquired for foreign intelligence purposes rather than ordinary law enforcement. But the Supreme Court has looked skeptically on similar arguments in the past, and in any event, Section 702 surveillance is routinely used for criminal investigation and prosecution, as the Hasbajrami case and others show.

As a result, our brief argues the Second Circuit should find that:

the procedures that governed the surveillance of Mr. Hasbajrami were constitutionally unreasonable, and thus violated the Fourth Amendment, because they permitted agents to freely use and search for the communications of Americans obtained without a warrant. Because the procedures failed to require individualized judicial approval of any kind—even after the fact, and even when the government sought to use or query the communications of a known U.S. person—the Court can and should find them defective. 

Meanwhile, Section 702 is set to expire at the end of the year. There are already several bills that would reauthorize the law. The first such bill, the USA Liberty Act from several representatives on the House Judiciary Committee, attempts to address problems like backdoor searches but still falls far short. This is a crucial time for lawmakers to hear from their constituents, so please join us in calling for true privacy reform.

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