Court rules FBIs warrantless searches violated Fourth Amendment
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"Better late than never" Court rules FBIs warrantless searches violated Fourth Amendment Rights groups demand lawmakers add a warrant requirement to Section 702. Ashley Belanger Jan 23, 2025 12:50 pm | 12 Credit: domoyega | iStock / Getty Images Plus Credit: domoyega | iStock / Getty Images Plus Story textSizeSmallStandardLargeWidth *StandardWideLinksStandardOrange* Subscribers only Learn moreIt's official: The FBI's warrantless searches of communications seized to protect US national security have at last been ruled unconstitutional and in violation of the Fourth Amendment.In a major December ruling made public this week, US District Judge LaShann DeArcy Hall settled one of the biggest debates about feared government overreach that has prompted calls to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA) for more than a decade.Critics' primary concern was whether the FBI needed a warrant to search and query Americans' communications that are often incidentally, inadvertently, or mistakenly seized during investigations of suspected foreign terrorists.The Electronic Frontier Foundation (EFF), a digital rights group that has long said a warrant is needed to conduct such invasive searches, celebrated the ruling as "better late than never." The EFF noted that the FBI conducted 3.4 million warrantless searches of US persons' 702 data in 2021, describing it as a "routine practice" and calling out Section 702 as a "finders keepers" rule that for years has seemingly given feds' unfettered access to many Americans' private and sensitive communication data.DeArcy Hall agreed with an appeals court that ruled that "the government cannot circumvent application of the warrant requirement simply because queried information is already collected and held by the government," as the US unsuccessfully tried to argue."To hold otherwise would effectively allow law enforcement to amass a repository of communications under Section 702, including those of US persons that can later be searched on demand without limitation," DeArcy Hall wrote. "While communications of US persons may nonetheless be intercepted, incidentally or inadvertently, it would be paradoxical to permit warrantless searches of the same information that Section 702 is specifically designed to avoid collecting," she said. And likely equally important, "public interest alone does not justify warrantless querying," she said.But she declined to issue harsh sanctions and denied a request to suppress evidence in the casewhich involved a permanent US resident, Agron Hasbajrami, who was arrested in 2011 partly based on FBI queries of 702 data, for providing material support to a terrorist organization. According to DeArcy Hall, the government conducted these searches in "good faith" and "objectively" believed "those queries did not require a warrant."Specific exceptions may applyThe ruling ends what DeArcy Hall described as the government's attempts to seek a broad general exception to search Americans' data that was accidentally collected without a warranteven when there is no timely reason to rush the queries. DeArcy Hall noted that the government searched Hasbajrami's communications for months without ever seeking a warrant and provided no evidence that seeking a warrant would have hindered their investigation."It is simply inconceivable that the government's aims would have been frustrated by securing a warrant at any time over the course of many months," DeArcy Hall wrote, and further, "there can be no argument that these queries were harmless."But she stopped short of ruling that all warrantless 702 searches of Americans' data are unconstitutional, noting that in certain cases where the feds need "timely" access to information to address a national security emergency, specific exceptions allowing warrantless searches may apply. Otherwise, "querying a Section 702 database in connection with a US person generally requires a warrant, even where the initial interception was lawfully conducted," DeArcy Hall ruled, partly because US persons maintain "a legitimate expectation of privacy.""Certainly, the Court can imagine situations where obtaining a warrant might frustrate the purpose of querying, particularly where exigency requires immediate querying," DeArcy Hall wrote. "This is why the Court does not hold that querying Section 702-acquired information always requires a warrant."Ruling renews calls for 702 reformsWhile digital rights groups like the EFF and the American Civil Liberties Union (ACLU) cheered the ruling as providing much-needed clarity, they also suggested that the ruling should prompt lawmakers to go back to the drawing board and reform Section 702.Section 702 is set to expire on April 15, 2026. Over the years, Congress has repeatedly voted to renew 702 protections, but the EFF is hoping that DeArcy Hall's ruling will perhaps spark a sea change."In light of this ruling, we ask Congress to uphold its responsibility to protect civil rights and civil liberties by refusing to renew Section 702 absent a number of necessary reforms, including an official warrant requirement for querying US persons data and increased transparency," the EFF wrote in a blog.A warrant requirement could help truly end backdoor searches, the EFF suggested, and ensure "that the intelligence community does not continue to trample on the constitutionally protected rights to private communications."The ACLU warned that reforms are especially critical now, considering that unconstitutional backdoor searches have been "used by the government to conduct warrantless surveillance of Americans, including protesters, members of Congress, and journalists."Patrick Toomey, the deputy director of the ACLUs National Security Project, dubbed 702 "one of the most abused provisions of FISA.""As the court recognized, the FBI's rampant digital searches of Americans are an immense invasion of privacy and trigger the bedrock protections of the Fourth Amendment," Toomey said. "Section 702 is long overdue for reform by Congress, and this opinion shows why.Ashley BelangerSenior Policy ReporterAshley BelangerSenior Policy Reporter Ashley is a senior policy reporter for Ars Technica, dedicated to tracking social impacts of emerging policies and new technologies. She is a Chicago-based journalist with 20 years of experience. 12 Comments
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