945 F.3d 641
2d Cir.2019Background
- Agron Hasbajrami was arrested at JFK in Sept. 2011 and charged with attempting to provide material support to terrorists; the government relied on electronic communications obtained during its investigation.
- After a guilty plea and sentence, the government disclosed that some evidence derived from FISA warrants was in turn based on information obtained without a warrant under Section 702 of the FISA Amendments Act; Hasbajrami withdrew his plea and moved to suppress Section 702-derived evidence.
- Section 702 authorizes warrantless targeting of non‑U.S. persons reasonably believed to be abroad; its operation can produce "incidental" collection (U.S. persons communicating with targeted foreigners) and "inadvertent" targeting (accounts mistakenly treated as foreign).
- The district court denied suppression, concluding the incidental collection and use of Hasbajrami's e‑mails were lawful; it did not fully resolve whether any querying of Section 702 databases had occurred or whether inadvertent targeting violated the Fourth Amendment.
- The Second Circuit affirmed that incidental collection of U.S. persons’ communications during lawful Section 702 surveillance does not violate the Fourth Amendment, found any inadvertent targeting in this case harmless, but remanded for district‑court factfinding about whether querying of stored Section 702 data occurred and, if so, whether those queries were reasonable and tainted the prosecution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a warrant is required for incidental collection of communications of U.S. persons when targeting a foreign person abroad under §702 | Hasbajrami: warrant required because U.S. persons have Fourth Amendment privacy rights and Section 702 lacks particularity and probable‑cause safeguards | Government: no warrant required; surveillance of foreigners abroad is outside warrant clause and incidental overhear doctrine allows use of third‑party conversations | Held: No warrant required; incidental collection permissible (Fourth Amendment reasonableness inquiry still applies) |
| Whether incidental collection of U.S. persons’ e‑mails under §702 was unreasonable | Hasbajrami: program scope and absence of judicial particularity make incidental collection unreasonable | Government: monitoring foreign agents is a compelling intelligence need; incidental collection is analogous to plain‑view/incidental overhear doctrines and is reasonable | Held: Incidental collection here was reasonable given national‑security interests and circumstances of collection |
| Legality and remedy for inadvertent targeting of an account later discovered to be a U.S. person | Hasbajrami: inadvertent targeting violates statute and Constitution; evidence should be suppressed | Government: inadvertent collection was limited, not used to obtain warrants or in prosecution, and was harmless | Held: Inadvertent direct targeting occurred but was brief and harmless beyond a reasonable doubt in this case; no suppression required on record before court |
| Whether querying/searches of stored §702‑acquired databases using U.S.‑person identifiers is a separate Fourth Amendment event and, if so, whether queries here were lawful and tainted the prosecution | Hasbajrami: querying of stored §702 data can be a Fourth Amendment search and may require heightened protections; queries might have tainted investigations | Government: queries of lawfully collected data are permissible; independent‑source doctrine may apply if warrants relied on other information | Held: Querying can raise distinct Fourth Amendment issues and must be reasonable; record here is insufficient—case REMANDED for district‑court factfinding on what queries occurred, their reasonableness, and any effect on the prosecution |
Key Cases Cited
- Verdugo‑Urquidez v. United States, 494 U.S. 259 (1990) (Fourth Amendment does not apply extraterritorially to searches of foreign property by U.S. agents)
- In re Terrorist Bombings, 552 F.3d 157 (2d Cir. 2008) (Warrant Clause has no extraterritorial application; reasonableness governs foreign surveillance of U.S. citizens abroad)
- United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016) (analyzed §702 incidental‑collection challenges and reasonableness standard)
- Donovan v. United States, 429 U.S. 413 (1977) (incidental interception/overhear doctrine; no requirement to name all likely overheard speakers)
- Riley v. California, 573 U.S. 373 (2014) (digital searches implicate heightened privacy concerns and may require warrants despite lawful seizure)
- Carpenter v. United States, 138 S. Ct. 2206 (2018) (collection of voluminous, deeply revealing third‑party records implicates Fourth Amendment protections)
- Maryland v. King, 569 U.S. 435 (2013) (reasonableness inquiry applies where Fourth Amendment does not require a warrant)
- Katz v. United States, 389 U.S. 347 (1967) (Fourth Amendment protects reasonable expectations of privacy, not just property rights)
- Murray v. United States, 487 U.S. 533 (1988) (independent‑source doctrine: evidence lawfully obtained by independent means need not be suppressed despite earlier unlawful entry)