A federal judge has ruled that the government’s action of obtaining information through “backdoor searches” violates the Fourth Amendment.
U.S. District Judge LaShann Dearcy Hall wrote in the ruling that the practice “would convert Section 702 into precisely what Defendant has labeled it—a tool for law enforcement to run ‘backdoor searches’ that circumvent the Fourth Amendment.”
The case centers on legal U.S. resident Agron Hasbajrami, who was arrested in 2011 and charged with providing support to a terrorist organization. The information obtained by authorities was collected under the Foreign Intelligence Surveillance Act (FISA). Authorities admitted that some of the information used in the case was collected without a warrant.
Under FISA, the government can surveil those believed to be threats to national security.
“[S]imply acquiring defendant’s communications under Section 702, albeit lawfully, did not, in and of itself, permit the government to later query the retained information,” Hall wrote. Section 702 allows for warrantless surveillance.
“To hold otherwise would effectively allow law enforcement to amass a repository of communications under Section 702—including those of U.S. persons—that can later be searched on demand without limitation. But this approach undermines the purpose of the warrant requirement, which is ’to interpose a ‘neutral and detached magistrate’ between the citizen and ’the officer engaged in the often competitive enterprise of ferreting out crime,’” Hall explained.
In 2023, Department of Justice (DOJ) Inspector General Michael Horowitz revealed that the FBI conducted 3.4 million warrantless searches of Americans’ communications. He noted, “It’s obviously very concerning that there’s that volume of searches and particularly concerning the error rate that was reported on in the last two years in the public reporting.”
According to Horowitz, approximately 30% of these searches, or over a million instances, were erroneous.
