Court says feds must obtain search warrant for spy databases under FISA.

In fact, one of the government’s most controversial spying practices requires no warrant, according to a new federal court ruling.

the resolutionThe decision, issued by Eastern District of New York Judge Lashan d’Arce Hall on Tuesday night, comes in the case of Agron Haspagrami, a US resident who was arrested in 2011 and initially pleaded guilty to attempting to provide material support to a terrorist organization. Haspagrami appealed his case after learning that federal agents had obtained some evidence against him through a warrantless search of databases containing communications intercepted under the Foreign Intelligence Surveillance Act (FISA).

The Foreign Intelligence Surveillance Act (FISA) allows federal spy agencies to operate backdoors into Internet companies and electronic communications providers, such as Google, Meta, and Apple, through which they collect massive amounts of communications. This law is supposed to reduce the collection of communications involving US citizens and residents, but it contains a variety of loopholes. Section 702 of the law specifically allows the government to collect communications that meet certain confidentiality standards without showing probable cause to believe that the persons communicating are not citizens or residents of the United States. Once these communications are collected, they can be stored in databases and later searched without the need for a warrant, the federal government claimed.

Haspagrami argued, and Judge D’Arcy Hall agreed, that post-accident searches require a warrant when the target of the searches is a U.S. resident.

“To do otherwise would effectively allow law enforcement to compile a repository of Section 702 communications — including those of U.S. persons — that could later be searched upon request without restriction.” D’Arcy Hall wrote.

Haspagrami’s case has been circling the halls of the federal court system for more than a decade. In 2018, a panel of the Second Circuit Court of Appeals ruled that the government’s warrantless collection of a U.S. person’s communications through FISA does not constitute a violation of the Fourth Amendment, as long as the collection is incidental to the government’s conduct of state surveillance of a non-U.S. person . But the court said it did not have sufficient evidence to decide whether the government should have obtained a warrant before searching databases of information collected under Section 702 of the Foreign Intelligence Surveillance Act (FISA) for communications related to a specific American person, in this case, Haspagrami.

The appeals court remanded the case to Judge D’Arcy Hall, who reviewed the specific inspections in question and found that the government failed to prove that it could not obtain a warrant to authorize and obtain them.

Civil libertarians hailed the ruling as a victory, and called on Congress to reform FISA to clearly state that searching bulk communications requires a warrant.

“We expect any lawmaker worthy of that title to listen to what this federal court has to say and create a legislative jurisdiction so that the intelligence community does not continue to trample constitutionally protected rights to private communications.” books Andrew Crocker and Matthew Guariglia, from the Electronic Frontier Foundation.

Despite the positive ruling on the warrant requirements, Judge D’Arce Hall did not grant Haspagrami’s request to suppress evidence that federal agents had collected against him through searches of Section 702 databases. She found that the agents were acting in “good faith” under what was , until its ruling, is the prevailing law governing these inspections.