Federal Court in New York Stands Up for the Constitution – Warrantless Section 702 Searches Violate the Fourth Amendment

​A ruling yesterday in United States v. Hasbajrami by the U.S. District Court for the Eastern District of New York made a first-of-its-kind finding that warrantless searches of Americans’ communications conducted under Section 702 of the Foreign Intelligence Surveillance Act violate the Fourth Amendment.
 
“The court reminds us just how moderate and practical a policy of restoring the Fourth Amendment really is,” said Gene Schaerr, PPSA general counsel. “The court recognized that there is room for exigent, or emergency, circumstances. But it reasonably creates an expectation that in most cases involving an American a warrant will be required.”
 
In 2019, the Second Circuit Court of Appeals recognized that Section 702 searches, or “queries,” of people in the United States trigger separate Fourth Amendment scrutiny. Tuesday’s ruling was the result of the lower court’s deeper constitutional analysis.
 
Now the lower court ruled that “there is a ‘powerful’ public interest in allowing law enforcement to run queries for national security purposes – but public interest alone does not justify warrantless querying.” The court acknowledged that exigent circumstances sometimes validate warrantless searches. In a key finding, the court declared:
 
“But just as the court does not hold that all querying requires a warrant, it likewise cannot hold that all instances of querying are of such paramount public interest as to never require a warrant.”
 
This long-running case involved Agron Hasbajrami, an Albanian resident of Brooklyn who was arrested in 2011 for allegedly providing foreign terrorists with material support. On separate grounds, the court denied Hasbajrami’s request to suppress the evidence. In Hasbajrami’s case, the government initially withheld the fact that Section 702 information was used against the defendant.
 
“Given that emergency circumstances are recognized by the court, this case gives the lie to the argument that a warrant requirement would destroy the usefulness of Section 702,” Schaerr said. “This is in keeping with the statement of attorney-general nominee Pam Bondi who acknowledged in a recent confirmation hearing that there is a problem with ‘backdoor searches’ under Section 702.
 
“We can have aggressive protection of the American people while standing up for the Constitution,” Schaerr said. “This court recognized that those two principles can go hand in hand.”

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