Court case puts PRISM back in the spotlight

The U.S. Second Circuit Court of Appeals is set to hear arguments on a long-running Fourth Amendment case that has broad implications for digital privacy and how much freedom the government has to use national security surveillance programs targeted at foreigners to later prosecute American citizens and residents in unrelated crimes.

The case deals with Agron Hasbajrami, an Albanian native and New York City resident arrested in 2011 and charged with providing material support to terrorist groups in Pakistan and Afghanistan. Hasbajrami pleaded guilty to a single count but later appealed when the government informed him that it intended to offer evidence “derived from acquisition of foreign intelligence information conducted pursuant to the [2008 FISA Amendments Act.]”

While monitoring the communications of a Pakistani target under Section 702 surveillance authorities, the National Security Agency intercepted email communications between the target and Hasbajrami. The FBI then used the content of those emails to build the government’s case against Hasbajrami. Lawyers for Hasbajrami have sought to suppress those emails as evidence, arguing that they were collected and used without a search warrant and violated his Fourth Amendment protection against unreasonable search and seizure.

The practice of allowing the FBI to search the digital communications of U.S. persons (citizens and residents) collected under a surveillance program designed to target foreigners, has been the subject of intense scrutiny and legal action. Civil liberties organizations have called the practice an end run around traditional Fourth Amendment and search warrant legal protections.

Hasbajrami’s case touches on the heart of those complaints. The government claims that since it was monitoring a foreign target, the collection of Hasbajrami’s emails was “incidental” and thus does not constitute a warrantless search that violated his rights, an argument previous courts have upheld.

However, Fourth Amendment legal experts have sharply questioned those findings. Elizabeth Goitein, co-director of the Brennan Center for Justice’s liberty and national security program, believes the government and previous courts have misinterpreted existing case law around incidental collection, giving law enforcement far broader powers to read and use the digital communications of U.S. persons without satisfying Fourth Amendment scrutiny.

“In short, [previous] cases carefully limit the communications that government may ‘incidentally’ obtain even with a warrant, to ensure that the material acquired will relate to a crime supported by a probable cause showing,” Goitein wrote in a piece for Just Security. “The notion that they support unlimited ‘incidental’ collection in cases where no warrant exists -- indeed, where no crime has even been specified -- is specious.”

Orin Kerr, a digital surveillance expert and law professor at the University of Southern California, echoed those concerns, writing on Twitter Aug. 25 that he hopes the Second Circuit court doesn’t follow the “very weird” precedent set by previous courts, which found that whom the government intended to surveil matters more than whom it actually surveilled and collected communications from. Essentially, Kerr argued that it is irrelevant if the government is technically targeting a foreigner when it collects the communications of U.S. persons. What matters is what information the government collects and what constitutional rights the person attached to that information has.

“In Fourth Amendment law, the concept of ‘targeting’ doesn’t exist,” Kerr wrote back in 2016 while discussing a similar case. “According to the Supreme Court, the Fourth Amendment uses objective rules. Fourth Amendment law focuses what the government does, not what the government is thinking when it does it.”

The case may also impact whether and how law enforcement agencies like the FBI are allowed to search and use communications to and from American citizens under the program. The NSA collects billions of communications under the program, dubbed PRISM, of which an undetermined number involve U.S. citizens. Those communications, collected under the auspices of fighting terrorism, are then stored in a shared database that the FBI and CIA can query and use for unrelated cases (drug smuggling, for instance).

Hasbajrami’s lawyers want to know if the government’s case started with those searches, something they and Goitein believe would represent an unconstitutional search.

“If the initial review of Section 702 resulted from a warrantless query … the subsequent obtaining of court orders wouldn’t cure the constitutional defect,” writes Goitein. “The information obtained under those would be “fruit of the poisonous tree” and subject to suppression.

If Hasbajrami succeeds, the decision could sharply limit the extent that the federal government is able to search and use evidence gleaned from its FISA surveillance authorities to prosecute U.S. persons. The question surfaced during last year’s contentious fight in Congress to reauthorize FISA Section 702. However, reformers wound up splintering and backing multiple bills, allowing supporters of more-robust surveillance to reauthorize the program while expanding the ability of organizations like the FBI to query the communications of U.S. persons absent a court order.

Groups like the American Civil Liberties Union and the Electronic Frontier Foundation have joined the defense, and gave arguments on Aug. 27 urging the court to declare the government’s PRISM program unconstitutional.