ACLU Urges Appeals Court to Uphold Fourth Amendment Rights Against Warrantless Government Surveillance

NEW YORK — The Second Circuit Court of Appeals heard arguments today in U.S. v. Hasbajrami, a criminal case challenging the FBI’s use of Section 702 of the Foreign Intelligence Surveillance Act (FISA) to secretly surveil the defendant’s communications without a warrant.

The appeal follows a January 2025 ruling by the federal district court holding that the FBI’s warrantless Section 702 searches of Mr. Hasbajrami’s communications violated the Fourth Amendment. The ruling was the first of its kind, and it followed years of public revelations about how Section 702 has been used by the government to conduct warrantless surveillance of people inside the United States, including journalists, activists, and even members of Congress.

“Section 702 is one of the most abused provisions of FISA,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “FBI agents routinely use this spying tool to probe the private communications of people in the United States, without ever getting a warrant. The Second Circuit has already recognized that these searches trigger the bedrock protections of the Fourth Amendment, and we hope it upholds the lower court’s ruling on this critical privacy issue.”

Under Section 702 of FISA, the government collects vast quantities of Americans’ international communications without a warrant, based on the claim that it is “targeting” more than 300,000 people, groups, and organizations abroad. It stores these communications in massive databases, which FBI agents later query using Americans’ names or email addresses.

In 2011, FBI agents subjected Mr. Hasbajrami to dozens of these warrantless queries—searching through its Section 702 databases in order to access his private emails. These queries, or “backdoor searches,” bypass the core protections of the Fourth Amendment. The government initially hid its use of Section 702 in Mr. Hasbajrami’s case and others, reversing course only after the Department of Justice's policy of wrongly concealing Section 702 surveillance in criminal cases came to light.

The ACLU and the Electronic Frontier Foundation (EFF) filed a friend-of-the-court brief in the case, urging the Second Circuit to affirm that these queries presumptively require a warrant, that no foreign-intelligence exception excuses them here, and that the searches were unreasonable under the Fourth Amendment. Today’s argument comes as Congress faces bipartisan pressure to reject any reauthorization of Section 702 that does not contain fundamental reforms, given the controversy over FBI, NSA, and CIA “backdoor searches” for Americans’ communications and systemic violations of the rules governing the surveillance.