Swordsmyth
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A little-noticed ruling earlier this month from a federal appellate court took a modest step toward curbing the FBI’s practice of searching—warrantless—for Americans’ data inside the National Security Agency’s dragnets ostensibly aimed at foreigners. Congress may be disinclined to close what’s known as the “backdoor search provision,” but there’s a renewed chance the courts might. In September 2011, authorities arrested Albanian citizen and Brooklyn resident Agron Hasbajrami at Kennedy Airport. Hasbajrami had a one-way ticket to Turkey and, prosecutors said, a plan to continue on to Pakistan to pursue jihad. Facing federal charges, Hasbajrami asked prosecutors if evidence against him derived from warrantless surveillance. In secret, they had collected Hasbajrami’s emails through surveillance resulting from Section 702 of the Foreign Intelligence Surveillance Act (FISA), which permits the NSA to collect massive amounts of internet communications and associated data, including from Americans’ international conversations, all without judicial approval or individual suspicion. Once obtained, the feds applied for a FISA warrant on Hasbajrami, thereby laundering their illicit surveillance for use in prosecuting him.
The government, following a practice of not revealing how such surveillance impacts criminal prosecutions, deceitfully neglected to tell Hasbajrami how they got his emails in the first place. As a result, Hasbajrami pleaded guilty in 2012 and began serving a 16-year sentence for material support to terrorism.
But after the 2013 revelations of mass surveillance Edward Snowden provided to The Guardian and The Washington Post, the Justice Department revealed to Hasbajrami that it had lied to him. Hasbajrami argued that he had been denied critical information underlying his decision to plead guilty—as well as a shot at arguing his prosecution was unconstitutional—withdrew his plea, and sought to suppress the ill-gotten evidence.
The case made its way to the Second Circuit Court of Appeals, which issued its ruling on Dec. 18. Judges in the case did not deal anything close to a death blow to Section 702. But, in a first for a federal appellate court, the judges found that warrantlessly searching through the NSA’s Section 702 databases, as the FBI and the CIA are permitted to do, “could violate the Fourth Amendment, and thus require the suppression of evidence.” Considering themselves without sufficient information to rule on the merits, they instructed the district court to investigate whether “such querying was reasonable.”
That’s a far cry from stopping either the NSA’s warrantless mass collection of internet data or the FBI’s warrantless searches of what the NSA collects. It’s uncertain what the district court will ascertain. But the appellate-court ruling is a step toward judicially mandated constraints on, at least, the downstream effects of such surveillance, and those effects include locking people up, so civil libertarians took what they could get. “Critically, the court holds that the government does not have carte blanche to amass Americans’ emails and phone calls and search through them at will,” noted the ACLU’s Patrick Toomey, who submitted a brief in the case.
The ruling comes after the secret spy panel known as the FISA Court ruled that the FBI’s use of the backdoor search provision is overbroad, abusive and illegal. On one single day in December 2017, according to the court, the FBI conducted 6,800 searches through NSA databases of ostensibly foreign information using Americans’ Social Security numbers. More broadly, the FBI’s searches, the court found, were not “reasonably designed” to find evidence of crime, but were instead fishing expeditions. The total number of Americans surveilled remains unknown.
More at: https://www.thedailybeast.com/the-surveillance-state-quietly-lost-a-major-court-case?re
The government, following a practice of not revealing how such surveillance impacts criminal prosecutions, deceitfully neglected to tell Hasbajrami how they got his emails in the first place. As a result, Hasbajrami pleaded guilty in 2012 and began serving a 16-year sentence for material support to terrorism.
But after the 2013 revelations of mass surveillance Edward Snowden provided to The Guardian and The Washington Post, the Justice Department revealed to Hasbajrami that it had lied to him. Hasbajrami argued that he had been denied critical information underlying his decision to plead guilty—as well as a shot at arguing his prosecution was unconstitutional—withdrew his plea, and sought to suppress the ill-gotten evidence.
The case made its way to the Second Circuit Court of Appeals, which issued its ruling on Dec. 18. Judges in the case did not deal anything close to a death blow to Section 702. But, in a first for a federal appellate court, the judges found that warrantlessly searching through the NSA’s Section 702 databases, as the FBI and the CIA are permitted to do, “could violate the Fourth Amendment, and thus require the suppression of evidence.” Considering themselves without sufficient information to rule on the merits, they instructed the district court to investigate whether “such querying was reasonable.”
That’s a far cry from stopping either the NSA’s warrantless mass collection of internet data or the FBI’s warrantless searches of what the NSA collects. It’s uncertain what the district court will ascertain. But the appellate-court ruling is a step toward judicially mandated constraints on, at least, the downstream effects of such surveillance, and those effects include locking people up, so civil libertarians took what they could get. “Critically, the court holds that the government does not have carte blanche to amass Americans’ emails and phone calls and search through them at will,” noted the ACLU’s Patrick Toomey, who submitted a brief in the case.
The ruling comes after the secret spy panel known as the FISA Court ruled that the FBI’s use of the backdoor search provision is overbroad, abusive and illegal. On one single day in December 2017, according to the court, the FBI conducted 6,800 searches through NSA databases of ostensibly foreign information using Americans’ Social Security numbers. More broadly, the FBI’s searches, the court found, were not “reasonably designed” to find evidence of crime, but were instead fishing expeditions. The total number of Americans surveilled remains unknown.
More at: https://www.thedailybeast.com/the-surveillance-state-quietly-lost-a-major-court-case?re
