NEW YORK \u2014 The Second Circuit Court of Appeals heard arguments today in U.S. v. Hasbajrami, a criminal case challenging the FBI\u2019s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) to secretly surveil the defendant\u2019s communications without a warrant.<\/p>\n
The appeal follows a January 2025 ruling by the federal district court holding that the FBI\u2019s warrantless Section 702 searches of Mr. Hasbajrami\u2019s communications violated the Fourth Amendment. The ruling was the first of its kind, and it followed years of public revelations about how Section 702 has been used by the government to conduct warrantless surveillance of people inside the United States, including journalists, activists, and even members of Congress.<\/p>\n
\u201cSection 702 is one of the most abused provisions of FISA,\u201d said Patrick Toomey, deputy director of ACLU\u2019s National Security Project. \u201cFBI agents routinely use this spying tool to probe the private communications of people in the United States, without ever getting a warrant. The Second Circuit has already recognized that these searches trigger the bedrock protections of the Fourth Amendment, and we hope it upholds the lower court\u2019s ruling on this critical privacy issue.\u201d<\/p>\n
Under Section 702 of FISA, the government collects vast quantities of Americans\u2019 international communications without a warrant, based on the claim that it is \u201ctargeting\u201d more than 300,000 people, groups, and organizations abroad. It stores these communications in massive databases, which FBI agents later query using Americans\u2019 names or email addresses.<\/p>\n
In 2011, FBI agents subjected Mr. Hasbajrami to dozens of these warrantless queries\u2014searching through its Section 702 databases in order to access his private emails. These queries, or \u201cbackdoor searches,\u201d bypass the core protections of the Fourth Amendment. The government initially hid its use of Section 702 in Mr. Hasbajrami\u2019s case and others, reversing course only after the Department of Justice’s policy of wrongly concealing Section 702 surveillance in criminal cases came to light.<\/p>\n