United States v. Agron Hasbajrami ( 2019 )

15-2684(L)
United States of America v. Agron Hasbajrami
15-2684, 17-2669
United States of Americi. v. Agron Hasbajrami
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2018
Argued; August 27, 2018 Decided: December 18 2019
I
Docket No. 15-2684-L; 17-2669-CON
UNITED STATES OF AMERICA,
Appellee,
- V. -
AGRON HASBAJRAMt
Defendant-Appellant.
Before:
LYNCH, CARNEY, and DRONEY, Circuit Judges.
Agron Hasbajrami was arrested at John F. Kennedy International Airport
in September 2011 and charged with attempting to provide material support to a
terrorist organization. After he pleaded guilty, the government disclosed, for the
first time, that certain evidence involved in Hasbajrami's arrest and prosecution
had been derived from information obtained by the government without a
warrant pursuant to its warrantless surveillance program under Section 702 of
the FISA Amendments Act of 2008. Hasbajrami then withdrew his initial plea
and moved to suppress any fn1its of the Section 702 surveillance. The district
court (Gleeson, then-].) denied the motion to suppress and Hasbajrami again
pleaded guilty, this time pursuant to a conditional guiJty plea that allowed him
to appeal the district court's ruling denying his motion to suppress.
He now appeals, arguing inter alia that the warrantless surveillance and
the collection of his communications violated the Fourth Amendment. We
conclude that the collection of the communications of United States persons
incidental to the lawful surveillance of non-United States persons located abroad
does not violate the Fourth Amendment and that, to the extent that the
government's inadvertent targeting of a United States person led to collection of
Hasbajrami's communications, he was not harmed by that collection. -
Because there is insufficient information
in either the classified or the public record in this case to permit us to determine
whether any such querying was reasonable, and therefore permissible under the
Fourth Amendment, we REMAND the case to the district court for further
proceedings consistent with this opinion.
MICHAEL K. BACHRACH, Law Office of Michael K. Bachrach,
New York, NY, Joshua L. Oratel, Joshua L. Dratel, P.C.,
New York, NY, and Steve Zissou, Steve Zissou &
Associates, Bayside, NY, for Defe,1dant-Appellant Agron
Hasbajrami.
SETH D. DUCHARME, David C. James, Saritha Komatireddy,
Assistant United States Attorneys, Joseph F. Palmer,
Attorney, National Security Division, United States
Department of Justice for Richard P. Donoghue, United
Stales District Attorney for the Eastern District of New
York, Brooklyn, NY,for the United States of America.
2
PATRICK TOOMEY and Ashley Gorski, American Civil Liberties
Foundation, New York, NY, Mark Rumold and Andrew
Crocker, Electronic Frontier Foundation, San Francisco,
CA, Amici Curiae American Civil Liberties Union and
Electronic Frontier Foundation.
GERARDE. LYNCH, Circuit Judge:
This case concerns the Fourth Amendment implications of the
government's increasing technological capacity for electronic surveillance in
foreign intelligence and terrorism investigations, and the balance our
constitutional system requires between national security and individual privacy.
On September 6, 2011, Defendant-Appellant Agron Hasbajrami
("Hasbajrami") was arrested as he attempted to board a flight to Turkey at John
F. Kennedy International Airport in Queens, New York. His luggage contained a
tent, boots, and cold-weather gear. The government, which had collected
Hasbajrami's electronic communications, charged him with attempting to
provide material support to a terrorist organization, alleging that he intended to
travel to the Federally Administered Tribal Area of Pakistan, where he expected
to join a terrorist organization, receive training, and ultimately fight "against U.S.
forces and others in Afghanistan and Pakistan." App'x at 44. During the course
of the prosecution, the government disclosed that it had collected some of its
3
evidence under the Foreign Intelligence Surveillance Act of 1978 ('''FISA"}, Pub,
L. No. 95-511, 92 Stat. 1783 (1978), codified at 50 U.S.C. § 1801 et seq., and that it
intended to introduce FISA-derived evidence at any eventual trial. Faced with
the evidence, including his own incriminating communications, Hasbajrami
ultimately pleaded guilty to attempting to provide material support to terrorists
in violation of 18 U.S.C. § 2339A. He was sentenced to 180 months in prison.
Hasbajrami was already serving his sentence when the government
provided him with a supplemental letter disclosing, for the first time, that some
of the evidence it had previously disclosed from FISA surveillance was itself the
fruit of earlier information obtained without a warrant pursuant to Section 702 of
the FISA Amendments Act ("Section 702"), Pub. L. No. 110-261, 122 Stat. 2436
(2008), codified at 50 U.S.C. § 1881a.
It is that Section 702-derived evidence - primarily electronic
communications between Hasbajrami and individuals without ties to the United
States and located abroad - that is at issue in this appeal. FoIIowing the
disclosure of Section 702 surveillance, the district court Gohn Gleeson, then-J.)
permitted Hasbajrami to withdraw his plea; Hasbajrami subsequently moved to
suppress all evidence seized by the government under its Section 702 programs,
4
as well as any fruits of that surveillance, including the evidence obtained
pursuant to FISA warrants and incul patory statements Hasbajrami made upon
arrest. The district court denied the motion to suppress, and Hasbajrami again
pleaded guilty, reserving his right to appeal the district court's denial of his
suppression motion.
The vast majority of Section 702 surveillance at issue here involves
information the government collected about Hasbajrami incidental to its
surveillance of other individuals without ties to the United States and located
abroad.
1
This opinion has been reviewed by appropriate intelligence agencies for the
purpose of redacting material that includes or references classified information.
After an initial redaction, the panel met ex parte with representatives of those
agencies in order to discuss potential substitutions or modified phrasing that
would minimize the need for redaction, and the possibility that certain
information referenced in the opinion could be declassified, thus further
5
In light of that disclosure, and the evidence in the public and classified
record, we reach three principal conclusions:
First, the "incidental collection" of communications
(that is, the collection of the communications of
individuals in the United States acquired in the course
of the surveillance of individuals without ties to the
United States and located abroad) is permissible under
the Fourth Amendment. We therefore conclude, in
agreement with the district court, that, at least insofar as
the record available to the district court is concerned,
the vast majority of the evidence detailed in the record
was lawfully collected.
Second, the "inadvertent collection" of communications
of those located within the United States (that is, the
acquisition of communications accidentally collected
because an intelligence agency mistakenly believes that
an individual is a non�United States person located
abroad and therefore targets that individual's e-mail
address under its Section 702 authority) raises novel
constitutional questions. We do not reach those
reducing the need for redaction. That meeting was transcribed for the record,
and the transcript (which is itself classified) will be preserved as part of the
record of this appeal in the custody of a Classified Information Security Officer
with the Department of Justice's Litigation Security Group. The meeting was
extremely productive, and has resulted in a modest number of changes of
wording that do not affect the substance of the opinion, and a significant
reduction in the amount of redacted material. It is of course regrettable that any
part of an opinion disposing of a criminal appeal is unavailable for public
inspection. However, we have neither the authority, nor the expertise, nor the
inclination to overrule classification decisions made by the relevant executive
branch agencies. We respect the need for such classification of sensitive national
security information, and appreciate the cooperation of the agencies in the effort
to limit the need for modifications and redactions.
6
questions today because we are satisfied that, to the
extent such accidental collection occurred in this case,
any information thus acquired did not taint the
investigation or prosecution of Hasbajrami.
Third, querying databases of stored information derived
from Section 702-acquired surveillance also raises novel
and difficult questions. Querying, depending on the
particulars of a given case (such as what databases are
queried, for what purpose1 and under what
circumstances), could violate the Fourth Amendment,
and thus require the suppression of evidence; therefore,
a district court must ensure that any such querying was
reasonable. But no information about any queries
conducted as to Hasbajrami was provided to the district
court, and the information provided to us on this
subject is too sparse to reach a conclusion as to the
reasonableness of any such queries conducted as to
Hasbajrami.
Given these conclusions, further proceedings are necessary to determine (a) what
(if any) evidence relevant to Hasbajrami was obtained by the government by
querying databases, (b) whether any such querying violated the Fourth
Amendment and, if so, (c) whether any such violation tainted other lawfully­
collected evidence. We therefore REMAND the case to the district court for
further proceedings consistent with this opinion.
BACKGROUND
This appeal concerns the legal status of evidence of Hasbajrami's electronic
communications with individuals located abroad, which was collected by the
7
government without a warrant pursuant to the government's authority under
Section 702. The background to this appeal may be easily summarized:
Hasbajrami sought to suppress evidence the government acquired under Section
702, arguing that the government had violated his Fourth Amendment rights
when it seized his communications without a warrant, and that those
communications, and any information that the government later collected as the
fruit of that initial warrantless surveillance, should therefore be suppressed. The
district court declined to suppress the evidence, and Hasbajrami pleaded guilty
while reserving his right to appeal the district court's decision.
But our disposition of the case turns in part on the particulars of how
Section 702-acquired surveillance was used in Hasbajrami's prosecution; a fuller
accounting of the facts of Hasbajrami's case and the nature of Section 702
surveillance is therefore necessary. First, we begin by describing Hasbajrami's
arrest and the initial proceedings in which he pleaded guilty, the subsequent
disclosure of Section 702 surveillance, Hasbajrami's withdrawal of his guilty
plea, and his subsequent motion to suppress. Second, we describe in broad terms
the operation of Section 702 surveillance. Third, we turn to the district court's
discussion of the use of Section 702 evidence (that it was aware of) in this case,
8
and its denial of the suppression motion. Finally, we describe the proceedings at
the district court following its denial of the suppression motion, and the
proceedings on appeal.
I. Allegations and Initial Proceedings
The conduct underlying Hasbajrami's prosecution occurred primarily
between April and August, 2011. During that time, Hasbajrami communicated
by e-mail with "Individual #1," a non-American located abroad, who Hasbajrami
believed was associated with a terrorist organization, In those e-mails,
Hasbajrami discussed his interest in the group's terrorist operations, and
Individual #1 instructed Hasbajrami how he could smuggle himself into Pakistan
to join the organization. Individual #1 also detailed means by which Hasbajrami
could send money to him and how Hasbajrami could contact him once he
reached Pakistan. In discussing his plans to join Individual #1 in Pakistan,
Hasbajrami also described his arrangements for traveling to Turkey, and his
concern that his projected route from there to Pakistan might have been
compromised.
Following an investigation by the agents of the Federal Bureau of
Investigation's Joint Terrorism Task Force, Hasbajrami was arrested as he was
9
about to board a flight to Istanbut Turkey. His luggage contained a tent, boots,
and cold-weather gear. Upon arrest, Hasbajrami made certain inculpatory
statements.
A. Initial Proceedings
Hasbajrami was indicted on September 8, 20lt and charged with one
count of providing material support to terrorist organizations. At the same time,
and as required by statute, the government gave notice that it "intend[ed] to
offer into evidence, or otherwise use or disclose in any proceedings ...
information obtained or derived from electronic surveillance and physical
searches conducted pursuant to [FISAJ. 11 See Notice of Intent to Use Foreign
Intelligence Surveillance Act Information, United States v. Hasbajrami, l:ll-cr-623
(E.D.N.Y. filed Sept. 13, 2011), ECF No. 9.
In discovery, Hasbajrarni was provided with evidence of his
communications obtained pursuant to traditional FISA warrants,2 and he
2As detailed below, this opinion will use "traditional FISA" to describe FISA
surveillance that was authorized by statute prior to the enactment of Section 702.
The FISA Amendments Act will be referred to as the "FAA," of which Section
702 is one part.
10
eventually pleaded guilty on April 12, 2012, to one count of providing material
sup port to terrorists. He was sentenced to 180 months' imprisonment.
B. Disclosure of Section 702 Surveillance, Withdrawal of Plea, and
Motion to Suppress
After Hasbajrami's initial plea and sentencing, and while Hasbajrami was
serving his sentence, the government disclosed that it had coUected Hasbajrami' s
communications under Section 702 of the FAA. 3 In a letter sent to Hasbajrami in
February 2014, the government stated that "based on a recent determination," it
had concluded that the information obtained from FISA surveillance that the
government had already disclosed "was itself also derived from other collection
pursuant to Title VII of FISA [i.e., Section 702] as to which you were aggrieved."
App'x at 31. The government stated that "certain evidence and information ...
that the government intended to offer into evidence or otherwise use or disclose
3The government's provision of notice in this case was likely in response the
Solicitor General's assertion, at oral argument before the Supreme Court in
Clapper v. Amnesty International USA, 568 U.S. 398 (2013), that prosecutors would
provide notice to defendants in cases where evidence was derived from Section
702 surveillance. See Charlie Savage, Door May Open Challenge to Secret Wiretaps,
N.Y.Times (Oct. 17, 2013), at A3. While the government's policy prior to Clapper
was not to provide notice of Section 702 surveillance, it began reviewing cases
and providing supplemental notice in 2013. Id.
11
in proceedings in this case was derived from acquisition of foreign intelligence
information conducted pursuant to the FAA." Id.
In response to that disclosure, Hasbajrami sought leave to withdraw his
plea. The district court granted that motion, finding that Hasbajrami had
"specifically asked [his counsel] about whether warrantless wiretaps had played
a role in his case. After [counsel] informed him that such wiretaps were not part
of the evidence, he was more willing to plead guilty. Thus, Hasbajrami seems to
have been misled about a fact he considered important in deciding how to
plead." App'x at 39. Furthermore, the government's misleading notice, according
to the district court, prevented Hasbajrami from kno wing that he could challenge
the evidence against him on the grounds that Section 702 was unconstitutional.
The court concluded that, prior to the letter disclosing Section 702 surveillance,
Hasbajrami "was not sufficiently informed about the facts" to have ''made an
intelligent decision about whether to plead guilty[.] When the government
provided FISA notice without FAA notice, Hasbajrami was misled about an
important aspect of his case." App'x at 38. Accordingly, the court allowed him to
withdraw the plea and reopened the case.
12
Hasbajrami then moved to suppress "the fruits of all warrantless FAA
surveillance," the motion that is at issue in this appeal. See Omnibus Motions at
8-9, United States v. Hasbajrami, 1:ll-cr-623 (E.D.N.Y. filed Nov. 26, 2014), ECF
No. 92 ("Suppression Motion"). He described what he sought to suppress, "the
fruits of all warrantless FAA surveillance," as including:
• all evidence and information derived as a result of Title
VII warrantless FAA surveillance;
• all evidence and information "obtained or derived from
Title I and Title III PISA collection ... [that was] itself
also derived from other collection pursuant to Title VII"
of the FAA;
• Hasbajrami's custodial statements; and
• Any other evidence and information that the
Government could not have obtained in this case
through an independent source.
Id.
To properly understand the scope of Hasbajrami's motion, however, it is
necessary to describe the statutory framework underpinning Section 702
surveillance and the way in which the program operates in practice.
13
II. Section 702 Surveillance 4
In order to ensure national security, the United States maintains several
programs aimed at the surveillance of those who pose threats to its safety. These
programs each draw on a wide vari�ty of authority, including executive orders,
statutory provisions, and agency procedures and guidance. See generally Diana
Lee, Paulina Perlin & Joe Schottenfeld, Gathering Intelligence: Drifting Meaning and
4 The purpose of this section is to provide the general background necessary to
understand the parties' arguments and it is not intended to provide a
comprehensive description of the way in which each agency implements Section
702 surveillance. Additionally, as detailed below, each agency must seek
approval of its Section 702 procedures each year, including changes in operation.
Our intention is thus only to describe the program in broad terms. We note,
moreover, that many Section 702 procedures remain highly classified, including
the specific procedures under which the collection of Hasbajrami' s
communications would likely have taken place. Our discussion here is drawn
from declassified public sources and in large part from the report on Section 702
surveillance produced by the Privacy and Civil Liberties Oversight Board. See
Privacy and Civil Liberties Oversight Board, Report on the Surveillance Program
Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act
(fuly 2, 2014), https://www.pclob.gov/library/702-Report.pdf ("PCLOB Report").
The PCLOB is an independent agency within the executive branch, authorized
by statute., inter alia, to "analyze and review actions the executive branch takes"
and "ensure that liberty concerns are appropriately considered" in the
government's development and implementation of anti-terrorism programs. See
42 U.S.C. § 2000ee(c). The PCLOB is composed of five members, appointed by the
President and confirmed by the Senate. Id. § 2000ee(h).
Accordingly, we discuss the program, and changes in its operation over
time, only to the extent that the details are (a) relevant and (b) public.
14
the Modern Surveillance Apparatus, 10 J. of Nat'l Sec. L. & Pol'y 77 (2019)
(describing several separate authorities for surveillance, including FISA and
Section 702, each with separate operating standards). Hasbajrarni's appeal
specifically implicates the government's statutory authority under FISA, first
enacted in 1978, and more specifically the amendments to FISA, including
Section 702, enacted in 2008. 5
FISA was first enacted in response to revelations about the government's
electronic surveillance of the domestic communications of United States citizens.
See David S. Kris & J. Douglas Wilson, National Security Investigations and
Prosecutions§ 3:7 ("Kris & Wilson"). "Traditional FISA" surveillance, as
surveillance under the FISA has come to be known following the enactment of
the FAA in 2008, governed surveillance inside the United States, in the context
only of national security investigations rather than domestic criminal
prosecutions. See id. § 4:2. For those national security investigations, FISA
established procedures governing the collection of information derived from
5While Section 702 was first enacted in 2008, the fact that any e-mails tied to
Americans were sometimes collected under its authority was not made public
until June 2013, when "two classified [National Security Agency ("NSA")J
collection programs were first reported by the press based on unauthorized
disclosures of classified documents by Edward Snowden, a contractor for the
NSA." PCLOB Report at 1.
15
electronic surveillance, physical searches, ''pen/trap" surveillance1 and tangible­
things production orders, and the use of information so obtained. See id. § 4:5.
In order to initiate traditional FISA surveillance, the government must
submit an application to a court demonstrating that there is "probable cause to
believe that 'the target of the electronic surveillance is a foreign power or agent
of a foreign power,' a nd that each of the specific 'facilities or places at which the
electronic surveillance is directed is being used, or is about to be used, by a
foreign power or an agent of a foreign power."' See Clapper, 568 U.S. at 403
(quoting FISA § 105(a)(3)). FISA applications are reviewed by two specialized
courts: the Foreign Intelligence Surveillance Court ( 11FISC") and the Foreign
Intelligence Surveillance Court of Review ("FISCR"),. both composed of Article
III federal judges assigned to their role by the Chief Justice of the United States.
See id.; Kris & Wilson § 5:1 (describing jurisdiction of FISC and FISCR).
Applications are submitted under oath by a federal officer and must describe,
among other things, whom the government wishes to search or surveil, the place
or things to be searched or surveilled, the sort of information the government
expects to gather, and the existence and nature of any prior FISA applications
targeting the individual. See generally Kris & Wilson§ 6:2.
16
Traditional FISA had some limitations, however. Because each application
required a court order, which in turn required probable cause, the government
believed th.at, after September 11, 2001, [FISA's] requirements unduly restrict[ed
11
the] speed and agility" with which the government could detect and respond to
terrorist threats. See id. § 16:2 (internal quotation marks omitted). Additionally,
the advent of e-mail "clearly expanded traditional FISA's reach." Id.§ 16:6.
Communications, such as phone calls, between two individuals without ties to
the United States and located abroad were outside the purview of FISA, and any
collection of such communications that occurred would not be constrained by its
procedures. Id. But as such communication increasingly came to be conducted by
e-mail, many of those e-mails would ultimately be stored on servers within the
United States, and thus "the government could not conduct warrantless
survei llance in the U.S. of stored e-mail messages exchanged between two parties
located abroad'' without following the procedures laid out in FISA. Id.
First enacted in 2008, Section 702 was intended to address some of FISA's
perceived limitations. 6 Section 702 allows the Attorney General (" AG") and
6President George W. Bush initially authorized the NSA "to conduct warrantless
wiretapping of telephone and e-mail communications where one party to the
communication was located outside the United States" and one party was
believed to be a member of a terrorist organization. See Clapper., 568 U.S. at 403.
17
Director of National Intelligence ("DNI") to "authorize jointly ... the targeting of
persons reasonably believed to be located outside the United States to acquire
foreign intelligence information.'' 50 U.S.C. § 1881a(a). 7 That targeting is
primarily executed by compelling electronic service providers, including internet
service providers and companies that maintain the communications
infrastructure, to "immediately provide the Government with all information,
facilities, or assistance necessary to accomplish the acquisition [of
communications of an individual or his or her account] in a manner that will
protect the secrecy of the acquisition and produce a minimum of interference
with the services that such electronic communication service provider is
providing to the target of the acquisition." 50 U.S.C. § 1881a(i)(l)(A).
Following public revelations of the program, Congress passed the Protect
America Act ("PAA"), Pub. L. No. 110•55, 121 Stat. 552 (2007), which far a limited
period of time allowed the government to use surveillance procedures similar to
those contained in the FAA. See In re Directives, 551 F.3d 1004, 1006-07 (FISA Ct.
Rev. 2008). The PAA expired on February 16, 2008. See id. at 10 0 6 n.1.
7 Like other sections of the FISA, Section 702's definition of "United States
person" includes lawful permanent residents (such as Hasbajrami). See 50 U.S.C.
§ 1801(i) (defining "United States person u to be a "citizen of the United States, an
alien lawfully admitted for permanent residence" or certain unincorporated
associations or corporations with ties to the United States).
18
Section 702 differs from traditional FISA procedures in several key
respects. First, Section 702 does not require a probable cause determination
before undertaking surveillance. Clapper, 568 U.S. at 404. Second, Section 702
"does not require the Government to specify [in a FlSA application] the nature
and location of each of the particular facilities or places at which the electronic
surveillance will occur." Id. Instead, as detailed below, the FISC approves Section
702 procedures in advance, targeting non-United States persons located abroad
as a category, and the government does not have to return to the FISC to seek
approval before it undertakes surveillance of any specific individual or his or her
accounts under those Section 702 procedures. See Kris & Wilson§ 17:17.
In short, under the FAA and Section 702 the government may compel
service providers located in the United States to provide e-mails or other
electronic communications to, from, or about individuals the government
believes are (a) not United States persons and (b) located abroad. 8 Both under the
8 The FAA also contains two sections, Sections 703 and 704, that address the
direct targeting of individual United States persons outside the United States for
electronic surveillance. See Laura K. Donohue, Section 702 and the Collection of
International Telephone and Internet Content, 38 Harv. J.L. & Pub. Pol'y 117, 142-44
(2015). The procedures followed "generally reflect the structure employed by
traditional FISA with regard to electronic surveillance and physical search.'' Id. at
143. These sections are codified at 50 U.S.C. §§ 1881h and 1881c, and are not at
issue in this appeal.
19
stahltory scheme and in practice, Section 702 surveillance unfolds in several
different steps, each with different implications for this Court's review. The first
step is what the statute and intelligence community refers to as "targeting,"
followed by collection, "minimization," retention and storage, and, finally,
dissemination and querying. 9 We will discuss each step in turn.
A. "Targeting"
Targeting generally refers to the decision to surveil an individual or his or
her channels of electronic communications, such as an e-mail address. The
government may not "intentionally target" for Section 702 surveillance anyone
located in the United States or a "United States person" outside the United
States. 50 U.S.C. §§ 1881a(b)(1), (3). Nor may it target a non-United States person
"if the purpose of such acquisition is to target a particular, known person
reasonably believed to be in the United States.n 50 U.S.C. § 188la(b)(2).
9 Some of these terms, such as collection, are terms of art, but their use is not
necessarily uniform across the various government agencies or for different
forms of surveillance. See, e.g., Lee, Perlin & Schottenfeld, Gathering Intelligence at
95 (highlighting "definitional variances" for terms like collection, acquisition,
and targeting across the various surveillance programs). For the purposes of
providing background to Hasbajrami's case, we define the terms primarily as
each is used by the PCLOB.
20
The precise mechanisms each agency must follow to target
communications are not specified by the statute. Instead, Section 702 requires the
AG and the DNI to adopt targeting procedures each year that will govern how
the program functions at each agency tasked with Section 702 surveillance. See 50
U.S.C. §§ 1881a(a), (d). While labelled targeting procedures, the procedures are
just as much about who is not to be targeted under Section 702 (that is, how to
prevent acquisition of the communications of those in the United States or who
are United States persons) as about setting out who is to be targeted. In this
opinion, our concern with "targeting' is with the procedures designed to protect
the constitutional privacy rights of Americans and comply with the Fourth
Amendment inside the United States, and not with the obviously confidential
procedures and criteria by which United States intelligence agencies decide
which non-United States persons located abroad are appropriate objects of
surveillance.
The targeting procedures are supposed to ensure that any authorized
acquisition is "limited to targeting persons reasonably believed to be located
outside the United States" and to "prevent the intentional acquisition of any
communication as to which the sender and all intended recipients are known at
21
the time of the acquisition to be located in the United States.n 50 U.S.C.
§ 1881a(d)(l). Targeting procedures are also subject to the limitations related to
targeting United States persons outlined above. SO U.S.C. § 1881a(b). The NSA
and the FBI each develop targeting procedures tailored to the agency's particular
mission and purpose in using Section 702-acquired information. PCLOB Report
at 41-43, 47.
Once the required procedures have been formulated, the DNI and AG
must seek approval of their proposed targeting procedures from the FISC. 50
U.S.C. § 1881a(d)(2). The FISC reviews the proposed standards for compliance
with both statutory and constitutional requirements. See, e.g., In re Proceedings
Required by 702(i) of FISA Amendments Act of 2008, No. MISC 08-01, 2008 WL
9487946, at •s (FISA Ct. Aug 27, 2008); Redacted, 2011 WL 10945618 at •1 (FISA Ct.
Oct. 3, 2011) ("Bates Decision"). In contrast to traditional domestic search
warrants and FISA warrants, which authorize searches or seizures of specific
persons, places, or things based on individualized probable cause, judicial
review of Section 702 functions as a form of programmatic pre-clearance. "[T}he
Court is required to consider whether the targeting ... procedures adopted by
the Government meet the requirements of the statute and ... are consistent with
22
the Fourth Amendment. The Court is not required, in the course of this Section
702(i} review, to reach beyond the Government's procedures and conduct a facial
review of the constitutionality of the statute." In re Proceedings, 2008 WL 9487946,
at ,.5; see also PCLOB at 26·31 (describing judicial review proceedings under
Section 702).
Once its procedures are approved by the FISC, an agency can begin
surveilling individuals it seeks to target. The NSA ''initiates all Section 702
targeting, and thus makes all initial decisions pursuant to its targeting
procedures.'' PCLOB Report at 42. According to the PCLOB, the CIA and the FBI
can "'nominate' targets to the NSA for Section 702 targeting" but the NSA is
required to ·"make the determination whether to initiate targeting." Id.
Section 702 surveillance usually begins when an agency "tasks" a specific
"selector" or "facility," usually an e•mail address or telephone number. See id. at
32. Much information about the targeting standards used by the NSA remains
classified, but generally "[i}f they are to fulfill their purposes ... [the targeting
procedures submitted to the FISC for approval] should contain a description of
factors that in isolation or combination justify a reasonable belief that the target is
abroad.'' Kris & Wilson § 17:7. According to one commentator, the NSA "has
23
created a presumption of non-U.S. person status/' assuming "that the individual
is a non-U.S. person" if the agency does not know its target is a United States
person. See Donohue, Section 702 at 158.
B. Collection
Once an account or facility such as an e-mail address has been targeted, the
intelligence agencies may then begin to collect information related to that
particular address. Such information includes e-mails to and from a given
account, or information "about" a given account.
1. PRISM and Upstream Collection
The NSA operates two separate types of collection programs which collect
different types of information. These two programs have come to be labelled
PRISM collection and upstream collection.
Under PRISM, the FBI (on behalf of the NSA) sends "selectors" (for
instance, an e-mail address) to internet service providers ("ISPs"), based in the
United States. The ISPs are then required to provide communications sent to or
from that selector to the NSA. See PCLOB Report at 33-34. PRISM, therefore,
collects only the e-mails a given user sends from his or her account, and the e­
mails he or she receives from others through that account. Id. at 34. Collection
24
and review of such material happens roughly in real time, or close to real time. In
other words, �he collected e-mails are not simply swept into a database for use at
some unspecified future time when the database is queried, but are monitored
and analyzed at or near the time of their collection. In that regard, the
interception and review of electronic communications under PRISM resembles a
traditional domestic law enforcement wiretap.
Upstream collection is broader. Instead of compelling information from an
ISP, the NSA instead compels information from "the providers that control the
telecommunications backbone over which communications transit." PCLOB
Report at 35. Upstream fills a gap in PRISM surveillance. Id. If, for instance, an
individual that the NSA sought to target maintained his or her e-mail account
with a foreign internet service provider, that e-mail address would be out of
reach of the PRISM program. In that situation, the NSA could use upstream
collection to collect traffic to that account as it traversed the backbone. Id.
Upstream collection is broader than PRISM, in that it captures not only
conversations to and from a given e-mail address, but also communications
"about" that address (i.e., a conversation between two parties not themselves
targeted that happens to mention whatever the tasked term is). See id. at 37-38.
25
One key difference between PRISM and upstream collection is that PRISM
collects individual communications, while upstream collects whole 1'multi­
communication transactions," or "MCTs." Id. at 39. "An Internet transaction
refers to any set of data that travels across the Internet together such that it may
be understood by a device on the Internet." Id. Thus, a transaction might contain
a single discrete com munication (e.g., a single e-mail), or it could contain
"multiple discrete communications," and "[i]f a single discrete communication
within an MCT is to, from, or about a Section 702-tasked selector, and at least one
end of the transaction is foreign, the NSA will acquire the entire MCT" under
upstream collection. Id. The result is a "greater likelihood" that upstream
collection will "result in the acquisition of wholly domestic communications and
extraneous U.S. person information." Id. at 41. The NSA is the only agency that
receives upstream collection; the CIA and FBI are not provided with information
obtained in this manner and do not store it in their databases. Id. at 54.
2. Incidental and Inadvertent Collection
As detailed above, the statute primarily authorizes agencies like the NSA
to collect the e-mails of "non-United States persons" located abroad. But even if
the government scrupulously follows the procedures intended to restrict
26
collection of communications to and from persons with ties to the United States,
the agencies might still end up collecting information about United States
persons or those located in the United States, or communications sent to or from
a United States person or an individual located in the United States.
Collection may sweep up those individuals' e-mails in two ways,
conventionally referred to as "incidental collection" and "inadvertent collection."
First, collection might be "incidental." PCLOB Report at 114. Incidental collection
occurs when a non-targeted individual (a United States person or someone in the
United States) communicates with a targeted non-United States person located
abroad. Such collection would occur under PRISM, for instance, if the NSA has
targeted the e-mail address of a non-United States person in another country,
and a United States person e-mails that targeted individual. An ISP would be
required to provide the NSA with any such e-mails as part of its compliance with
a Section 702 directive targeting the non-United States party to the
communication.
Second, collection might be "inadvertent." Id. at 116. Inadvertent collection
occurs when the NSA reasonably believes that it is targeting a non-United States
person located abroad, or does not have enough information to determine
27
whether an individual e-mail address or other communications facility is being
used by a United States person or accessed from within the United States, and
therefore presumes that the account is controlled by a foreigner outside the
United States. The collection is characterized as "inadvertent" when the agency
learns that the person controlling the account is a United States person after it
has already acquired some of the person's communications. In essence,
inadvertent collection occurs when the NSA targets United States persons or
individuals located within the United States in error: the agency thought it was
targeting a foreign individual abroad, but the targeted person was in fact a
United States person or an individual located in the United States.
C. "Minimization"
In general terms, minimization describes the manner in which the
government processes communications after they have been collected and seeks
to provide safeguards against the misuse of Section 702 information. See PCLOB
Report at SO. The 2011 Minimization Procedures, which have been declassified,
apply "to the acquisition, retention, use, and dissemination of non-publicly
available information concerning unconsenting United States persons that is
acquired by targeting non-United States persons reasonably believed to be
28
located outside the United States." Se,e Minimization Procedures Used by the
National Security Agency in Connection with Acquisitions of Foreign Intelligence
Information Pursuant to Section 702 of the Foreign Intelligence Surveillance Act of
1978, As Amended§ 1, National Security Agency (Oct. 31, 2011),
https://www.dni.gov/files/documents/
Minimization%20Procedures%20Used %20By%20NSA%20In%20Connection%20
With%20FISA%20Section%20702.pdf ("NSA 2011 Minimization Procedures").10
As with their targeting procedures, the NSA, FBI, and CIA must seek
yearly approval of their minimization procedures from the FISC. 50 U.S.C.
§ 1881a(e)(2). Section 702 requires that each agency also adopt procedures that
prohibit the disclosure of information about United States persons in a manner
that identifies them, unless that identity is necessary to understand the
intelligence information. See 50 U.S.C.§ 1881a(e)(1) (cross-referencing 50 U.S.C.
§§ 1821(4) and 1801(h)); see also Kris & Wilson§ 9:1. By statute, the procedures
must ensure ''that nonpublicly available information, which is not foreign
intelligence information ... shall not be disseminated in a manner that identifies
These minimization procedures were submitted to the FISC for approval after
10
Hasbajrami' s arrest, and therefore did not govern the operation of Section 702
during the time period relevant here.
29
any United States person, without such person's consent, unless such person's
identity is necessary to understand foreign intelligence information or assess its
importance." 50 U.S.C. § 1801(h)(2).
Minimization procedures seek to "balance the government's need to
acquire, retain, and disseminate forei gn intelligence information, against the
countervailing privacy interests of U.S. persons." Kris & Wilson§ 9:1; PCLOB
Report at 50 ("Minimization procedures are best understood as a set of controls
on data to balance privacy and national security interests."). The meaning of the
term as used in the FISA context is subtly different from what it means in the
more familiar context of court-authorized domestic electronic surveillance by law
enforcement agencies under traditional domestic wiretaps. In the latter context,
minimization procedures generally involve stopping the monitoring of
communications that can be determined in real time to be non-evidentiary. In the
context of Section 702 surveillance, the information subject to minimization has
already been collected. After review, it is either retained or destroyed;
information is "minimized'' by non-retention. NSA analysts are instructed to
"exercise reasonable judgment in determining whether information acquired
must be minimized and will destroy inadvertently acquired communications of
30
or concerning a United States person at the earliest practicable point in the
processing cycle at which such communication can be identified either: as clearly
not relevant to the authorized purpose of the acquisition (e.g., the
communication does not contain foreign intelligence information); or, as not
containing evidence of a crime which may be disseminated under these
procedures." 11 NSA 2011 Minimization Procedure§ 3(b)(l).
After an NSA analyst reviews an individual e-mail communication, he or
she will decide if the information warrants retention in the NSA's databases
and/or dissemination to other agencies. The analyst will determine if "it is a
domestic or foreign communication to, from, or about a target and is reasonably
believed to contain foreign intelligence information or evidence of a crime." Id.
§ 3(b)(4). Communications fitting this description will thus.be retained and
processed; information not involving foreign intelligence information or
evidence of a crime will be destroyed unless it meets one of several exceptions,
11 It is not clear whether the minimization procedures' use of "inadvertent" here
is intended broadly to invoke the word's p1ain meaning, or is used as a term of
art to apply the provision only to communications acquired as a result of
"inadvertent collection," as defined above, where a United States person has
been erroneously targeted.
31
such as when "the communication contains information pertaining to a threat of
serious harm to life or property." Id. § 5(4).
When an e-mail or other communication is processed and retained, the
information will be scanned and stored. Information that "do[es] not meet the
retention standards ... and ... [is] known to contain communications of or
concerning United States persons" will be "destroyed upon recognition." Id.
§ 3(c)(l). If a target moves to the United States, or if the NSA uncovers
information that the target is a United States person, "acquisition from that
person will be terminated without delay." Id.§ 3(d)(l).
"[D]omestic communications" - all communications that do not have "at
least one communicant outside the United States," id.§ 2(e), "will be promptly
destroyed," except under certain conditions. Id.§ 5. Such conditions include if a
communication is "reasonably believed to contain significant foreign intelligence
information,'' which may be provided to the FBI (which in tum may disseminate
information "in accordance with its minimization procedures"). Id. § 5(1).
Information that is "reasonably believed to contain evidence of a crime that has
been, is being, or is about to be committed 11 may be "disseminated (including
32
United States person identities) to appropriate Federal law enforcement
agencies." Id. § 5(2).
D. Retention and Dissemination
As addressed above, the minimization procedures also govern the ultimate
retention of surveillance materials and the "reporting of acquired information
outside of [the] intelligence agency" that collects the information. PCLOB Report
at 64. The minimization procedures treat retention and dissemination in similar
ways: the NSA, for instance, may retain communications "in generally the same
situations where the NSA is permitted to disseminate ... these communications"
to other agencies. Id. at 62.
1be retention and dissemination of information gathered under the FAA is
also governed by the same restrictions that apply to traditional FISA. Id. at 64.
Additional protections generally apply if the NSA, for instance, seeks to
disseminate Section 702 information con taining the identity of a United States
person. The NSA will then "mask" the identity, deleting any identifying
information unless certain exceptions apply. These exceptions include when "the
U.S. person's identity is necessary to understand foreign intelligence
33
information, or the communication contains evidence of a crime and is being
disseminated to law enforcement authorities." Id. at 65.
Agencies relying on NSA reporting may request that the identity of a
United States person be unmasked. Id. The NSA may provide that information if
at least one additional criterion is met, including when "the identity of the
United States person is necessary to understand foreign intelligence information"
or the information "indicates that the United States person" is an "agent of a
foreign power" or the "target of intelligence activities of a foreign power." NSA
2011 Minimization Procedure § 6(b). Agencies may also request that information
about a given e-mail address or facility be forwarded on a regular basis.
E. Storage and Querying
Once communications are collected and retained or disseminated, each
agency may establish databases to store those communications in its possession,
and may query those stored communications to identify information of interest
in connection with a particular investigation or agency function.
The NSA, CIA, and FBI each maintain separate databases containing
Section 702 information on which the agencies rely for their own purposes.
PCLOB Report at 55-56. According to the PCLOB,. the NSA, for instance, 11 often
34
stores data acquired from multiple legal authorities in a single data repository.''
PCLOB at 55. The agency then "tags" the sources for each piece of information,
and "has systems that prevent an analyst from accessing or querying data
acquired under a legal authority for which the analyst does not have the requisite
training." 12 Id. at 55-56. The CIA limits access to databases that contain Section
702-acquired information to only those agents who have had the requisite
training. Id. at 55. And the FBI "stores electronic data obtained from traditional
FISA electronic surveillance and physical searches ... in the same repositories as
the FBI stores Section 702-acquired data." Id. at 59. An agent without requisite
training would see whether a piece of Section 702-acquired information was
responsive to her query, but she would not be able to view the actual underlying
material without clearance. Id.
1
'Data is frequently reviewed through queries, which identify
communications that have particular characteristics specified in the query, such
as containing a particular name or having been sent to or from a partic ular e-mail
address." Id. at 127. Colloquially, the parties (and those engaged in policy
12Each agency with access to Section 702 data provides training to personnel
regarding the proper use of Section 702 material, as well as the agency's
minimization procedures. See PCLOB Report at 53-54. The exact training
procedures and who is trained may vary by agency.
35
debates about the program) have referred to this querying capability as
"backdoor searches."
Originally, the minimization procedures precluded analysts from
searching terms associated with United States persons. See Classified
Supplemental App'x at 121-22
In
April 2011, the government sought approval for new minimization procedures
that allowed the querying of terms related to United States persons. See Bates
Decision, 2011 WL 10945618 at '7-8. The FISC ultimately approved the new
procedures in October 2011 (i.e., after Hasbajrami's arrest) because they were
"designed to yield foreign intelligence information.'' Id. at •7_ Querying, the court
stated, "should not be problematic in a collection that is focused on non-United
States persons located outside the United States and that, in the aggregate, is less
36
likely to result in the acquisition of nonpublic information regarding non­
consenting United States persons." Id.
In a June 2014 letter to Senator Wyden, Deirdre Walsh, Director of
Legislative Affairs for the Office of the Director of National Intelligence, stated
that each of the three agencies allowed querying. The NSA could query Section
702-acquired information if it had a "reasonable basis to expect the query will
return foreign intelligence,'' as could the CIA and the FBI. See Response to
Question from the 5 June 2014 Hearing, Letter from Deirdre Walsh, Director of
Legislative Affairs, to Senator Ron Wyden (June 27, 2014) ("Walsh Letter"); see
also PCLOB Report at 57-58. The FBI is also allowed to query its own databases
in such a way that these queries are "designed to find and extract evidence of a
crime." Walsh Letter at 2. The FBI also will query previously acquired
information from a variety of sources, including Section 702 when it "opens new
national security investigations." Id. at 3.
Recently, and after the time pericxl at issue in this case, Congress enacted
the FISA Amendments Reauthorization Act of 2017, Pub. L. No. 115-118, 132 Stat.
3 (2018), codified at SO U.S.C. § 1881a. The act amended the FAA to require the
agencies to develop "querying procedures" alongside their targeting and
37
minimization procedures and seek approval of all three sets of procedures yearly
from the FISC. Congress also amended the FAA to require a court order in most
cases where the FBI seeks to "access the contents of communications ... that
were retrieved pursuant to a query made using a United States person query
term that was not designed to find and extract foreign intelligence information.''
50 U.S.C. § 1881a{f)(2)(A). Such querying standards were not in place when the
surveillance at issue here occurred.
Ill. The District Court's Denial of Hasbajrami's Suppression Motion
As noted above, Hasbajrami moved to suppress "the fruits of all
warrantless FAA surveillance." See Suppression Motion at 8. He also moved for
discovery of the FISA and Section 702 information relevant to his case.
After the district court reviewed the relevant materials ex parte and in
camera, it denied the suppression motion. See United States v, Hasbajrami, 1:11-cr-
623, 2016 WL 1029500 (E.D.N.Y. Feb. 18, 2016) ("Suppression Decision''). 13 It
treated the suppression motion as an as-applied challenge to the Section 702
surveillance used to support the government's initial application to the FISC,
13As addressed below, the district court announced its decision on February 15,
2015, in a text order on the docket, issued without an opinion. The redacted
opinion was issued on the public docket in March 2016.
38
primarily addressing the issue of collection. Id. at *7. First, after noting the
,
distinction between PRISM and upstream collection, the court concluded that
"[n]one of the Section 702 communications used in Title I and Title II FISA
applications targeting the agent of the foreign power were 'about'
communications" and therefore "the constitutionality of upstream collection
[was] not at issue" in Hasbajrami's case. Id. at *6-7.
The district court then turned to PRISM collection. Summarizing
precedent, the court noted that the Fourth Amendment "does not constrain the
government from collecting the communications of non-U.S. individuals targeted
by Section 702 surveillance." Id. at .,.7, Although Hasbajrami was a legal
perm.anent resident located in the United States, the court found that it was
"non-U.S. persons who were the targets of Section 702 surveillance" and that
Hasbajrami's e-mails were collected incidentally to the surveillance of
individuals the court described as "legitimate targets of Section 702
surveillance." Id. The court concluded that the incidental interception of the
communications of individuals in the United States was constitutional because
the surveillance was "lawful in the first place - whether it is the domestic
surveillance of U.S. persons pursuant to a warrant or the warrantless surveillance
39
of non-U.S. persons who are abroad - [and therefore] the incidental interception
of non-targeted U.S. persons' communications with the targeted persons is also
lawful." Id. at 11-9,
The court did not address whether any inadvertent collection related to
Hasbajrami. It also did not address the specifics of any querying as applied to
Hasbajrami in particular, and there does not appear to have been any fact­
finding regarding the querying of previously-collected communications with
identifiers related to Hasbajrami. Instead, the parties had raised querying within
the context of whether the minimization procedures were reasonable, and the
government argued that it was permitted to query whatever data it had lawfully
collected even if it used identifiers it knew were associated with United States
persons. See Gov't Mem. of Law at 71, United States v. Hasbajrami, 1:ll-c:r-623
(E.D.N.Y. filed Dec. 23, 2014), ECF No. 97. To the extent that the district court
considered querying, then, it appeared to adopt the government's position,
stating in a footnote:
That the government is able to query information
obtained under the PRISM program, i.e. lawfully­
obtained communications that were to or from
legitimate targets, does not render the minimization
procedures inadequate, as amici contend .... Here, once
the government learned that the target was potentially
40
an agent of a foreign power, the government sought
orders from the FISC for electronic surveillance and
physical searches pursuant to Title I and Title III of
FISA targeting an agent of a foreign power .... I agree
with the government that "[i]t would be perverse to
authorize the unrestricted review of lawfully collected
information but then [] restrict the targeted review of
the same information in response to tailored inquiries."
Gov't Br. at 71-72.
Suppression Decision, 2016 WL 1029500 at *12 n.20.
As for Hasbajrami's request to provide discovery to properly-cleared
defense counsel, the district court concluded that disclosure was unnecessary. Id.
at "'14. Instead, its review was "relatively straightforward and not complex" and
the district court was "able to evaluate the legality of the challenged surveillance
without concluding that due process first warranted disclosure." Id. at *14 (citing
United States v. Abu-Jihaad, 630 F.3d 102, 129 (2d Cir. 2010)).
IV. Further Proceedings at the District Court
The district court denied the motion to suppress in a text order dated
February 20, 2015. The order stated that "[a]n opinion [would] follow," but that
the motion would be denied as to "the fruits of the FAA surveillance, including
the defendant's post-arrest statements." App'x at 16. The court noted that it
would hold a conference and "inquire of the government whether it intends to
offer once again the charge bargain that was previously accepted by the
41
defendant, and whether it has considered the prospect of allowing the defendant
to enter such a plea pursuant to Rule ll(a)(2), reserving his right to seek
appellate review of [the district court's] denial of the motion to suppress
evidence." Id.
The parties prepared for trial, but Hasbajrami in due course again pleaded
guilty, this time to a two-count Superseding Information, which charged him
with providing and attempting to provide material support to terrorists.
According to the terms of the agreement, Hasbajrami:
[A]gree[d] not to file an appeal or otherwise challenge
... the conviction or sentence in the event that the Court
imposes a term of imprisonment of 180 months or
below, with the sole and limit�d exception that,
pursuant to Federal Rule of Criminal Procedure
ll(a)(2), the defendant may appeal the District Court's
February 20, 2015 denial of his motion to suppress
evidence that was obtained or derived from
surveillance conducted pursuant to the FISA
Amendments Act of 2008, 50 U.S.C. §§ 1881a et seq.
App'x at 48. Hasbajrami also consented to his removal, after serving his sentence,
from the United States. The district court sentenced H asbajrami to a term of 180
months' imprisonment on Count One and 12 months' imprisonment on Count
Two, each to run consecutively.
42
On March 8, 2016 - more than one year after it denied the motion - the
district court issued a redacted opinion on the public docket explaining its
reasons for denying suppression. Hasbajrami requested that the full decision be
released to his cleared defense counsel, so that he might better prepare his
appeal. The court (Dora L. Irizarry, C./.)14 held that PISA required redaction and
that "Defendant's counsel are not entitled to view the Unredacted Opinion
because releasing it would reveal classified foreign intelligence informatio n and
circumvent FISA .... " United States v. Hasbajrami, l:11-cr-623, 2017 WL 3610595
at "'3 (E.D.N.Y. April 6, 2017).
V. Proceedings on Appeal
Hasbajrami timely filed two notices of appeal. The first addressed the
district court's denial of Hasbajrami's motion to suppress; the second addressed
the district court's decision to deny Hasbajrami' s counsel access to the
unredacted and unmodified version of the suppression ruling. Both appeals were
consolidated and argument was heard by this Court on August 27, 2018.
At oral argument, the government was unable to represent whether or not
identifiers related to Hasbajrami had been used in querying previously-acquired
14By this point, the case had been transferred to Chief Judge Irizarry following
Judge Gleeson's resignation.
43
Section 702 surveillance databases. This Court therefore ordered the government
to "identify(] the record evidence that supports the proposed factual inference
that it conducted no queries or back.door searches of Section 702 material with
regard to Hasbajrami before or leading to the FISA court's issuance of Title I and
Title ID warrants with respect to Hasbajrami." Order, United States v. Hasbajrami,
Nos. 15-2684, 17-2669 {2d Cir. Sept. 4, 2018), ECF No. 203.
Both parties filed supplemental briefing, including an additional classified
brief from the government (which was posted, heavily redacted, on the public
docket for this appeal).
DISCUSSION
Hasbajrami primarily raises an as-applied challenge to the
constitutionality of warrantless collection and review of his communications
under Section 702. 15 As the PCLOB notes, judicial review of Section 702
surveillance presents particular challenges because the program:
entails many separate decisions to monitor large
numbers of individuals, resulting in the annual
collection of hundreds of millions of communications of
15Hasbajrami also raises an alternative statutory argument, arguing that
suppression was warranted because he claims the surveillance did not comply
with the requirements of Section 702 itself. The Court has carefully considered
the argument, in light of the classified record, and finds it without merit.
44
different types, obtained through a variety of methods,
pursuant to multiple foreign intelligence imperatives,
and involving four intelligence agencies that each have
their own rules governing how they may handle and
use the communications that are acquired.
PCLOB Report at 86. In other words, review is difficult because we must
consider those individual "separate decisions" within the context of the program
as a whole.16
In this case, it is undisputed that the government possessed ample
evidence obtained from surveillance authorized by a FISA warrant to convict
Hasbajrami. The evidence that formed the basis for that warrant however, was
obtained as a result of warrantless Section 702 surveillance of non-United States
persons located abroad. Thus, the primary issue, affecting the bulk of the
evidence against Hasbajrami, is whether the incidental collection of the
communications of United' States persons, without a warrant, violates the Fourth
Amendment. We conclude, as did the district court, that such collection is lawful.
But that is not the only action involving Section 702 surveillance at issue here.
16When reviewing a district court's denial of a motion to suppress evidence, we
review the court's legal determinations de novo and its factual findings for clear
error. United States v. Boles, 914 F.3d 95, 102 (2d Cir. 2019). The issues on appeal
are legal, and therefore our review here is de nova.
45
We must also address inadvertent collection, storage and querying, as each of
these issues is raised by the record.
The record is sufficient to permit us to answer the principal question
before us: we conclude that the district court correctly held that the incidental
collection in this case, and the government's use of the information thus
collected, was lawful. The record also permits us to conclude that, even assuming
that inadvertent collection of the communications of United States persons may
in some circumstances violate the Constitution, the effect of any such collection
in this case was harmless beyond a reasonable doubt. The absence of evidence in
the record regarding
, however, prevents us from
determining the reasonableness of any such querying
prior to the FISC's probable-cause finding, and from fully understanding how if
at all the results of such querying affected the subsequent conduct of the
investigation. As a result, we must remand for further proceedings and fact­
finding by the district court.
46
I. ..,Incidental" Collection
The primary type of Section 702 collection we must address here involves
"incidental" collection. The government was "targeting," within the meaning of
Section 702, the accounts of individuals located abroad who were reasonably
believed to be agents of terrorist organizations. In collecting communications
from those accounts, the government collected e-mails between Hasbajrami and
In reviewing
Hasbajrami's suppression motion, the district court focused on this incidental
collection, ultimately concluding that a warrant was not required and the
government's actions were reasonable.
On appeal, Hasbajrami and the amici argue that the Fourth Amendment
bars the incidental collection of e-mails of individuals, like Hasbajrami, located in
47
the United States. First, they argue that surveillance of individuals in the United
States is per se unreasonable if it is conducted without a warrant. They also focus
on the specific attributes of warrants - the particularity requirement, the need
for a neutral judicial forum and a finding of probable cause - and argue that
Section 702,. the targeting and minimization procedures, and FISC oversight do
not provide a substitute procedure sufficient to satisfy the Fourth Amendment.
According to Hasbajrami, the broad scope of Section 702's surveillance and the
government's failure to seek a warrant or its equivalent render the program
unconstitutional as applied to him and therefore requires the suppression of
evidence acquired under the program.
We disagree. In addressing the issues before us, we adopt an approach
similar to that employed by the United States Court of Appeals for the Ninth
Circuit in United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016). We must first
decide whether a warrant is required for the government's incidental collection
of the communications of United States persons. We conclude that a warrant is
not required for such collection. But "[e]ven if a warrant is not required, a search
is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope
and manner of execution." Maryland v. King, 569 U.S. 435, 448 (2013); see also
48
Mohamud, 843 F.3d at 441. We further conclude that the incidental collection of
Hasbajrami's e-mails was reasonable.
A. No Warrant was Required
We conclude that a warrant is not required based on two well-established
principles of Fourth Amendment law. First, the Fourth Amendment does not
apply extraterritorially to the surveillance of persons abroad, including United
States citizens. Second, law enforcement officers do not need to seek an additional
warrant or probable cause determination to continue surveillance when, in the
course of executing a warrant or engaging in other lawful search activities, they
come upon evidence of other criminal activity outside the scope of the warrant or
the rationale justifying the search, or the participation of individuals not the
subject of that initial warrant or search.
First, the Fourth Amendment (and, in particular, its warrant requirement)
does not apply extraterritorially. See United States v. Verdugo-Urquidez, 494 U.S.
259 (1990). In Verdugo-Urquidez, agents from the United States Drug Enforcement
Agency, working alongside Mexican law enforcement, raided without a warrant
properties in Mexico owned by the defendant. Id. at 262-63. The agents believed
that the defendant was the leader of a narcotics smuggling ring and they seized
49
documents and "a tally sheet" detailing quantities of drugs possessed and
transported. Id. Prior to trial, the defendant sought suppression of the evidence,
arguing that the agents should have sought a warrant before searching his
property. Id. at 263-64.
The Supreme Court held that suppression of the evidence was not
required, because the Fourth Amendment does not apply to extraterritorial
actions by law enforcement, at least where the "[the defendant] was a citizen and
resident of Mexico with no voluntary attachment to the United States, and the
place searched was located in Mexico." Id. at 274-75. "Under these
circumstances," the Court held, "the Fourth Amendment ha[d] no application."
Id. at 275.
This Court has since extended Verdugo-Urquidez's holding to conclude that
the Warrant Oause of the Fourth Amendment does not apply to the surveillance
of United States citizens abroad. See In re Terrorist Bombings, 552 F.3d 157, 171 (2d
Cir. 2008). The defendant in that case, a United States citizen with a home in
Kenya, had "urged the suppression of the evidence resulting from the ...
[electronic] surveillance of his Kenyan telephone lines'' because it was not
authorized by a valid warrant or, alternatively, because the surveillance was
50
unreasonable. Id. at 160. This Court held that "the Fourth Amendment's Warrant
Clause has no extraterritorial application and that foreign searches of U.S.
citizens conducted by U.S. agents are subject only to the Fourth Amendment's
requirement of reasonableness." Id. at 171. \Ve determined that the searches in
that case were ultimately reasonable and therefore suppression of the evidence
was not required.
Verdugo-Urquidez and In re Terrorist Bombin&s make it dear that the Fourth
Amendment does not requirl:! the government to obtain a warrant before
collecting the e-mails of foreign individuals abroad. Nor can there be any
question that the electronic surveillance of foreign individuals located abroad
who are reasonably believed to hold themselves out as agents and - of
terrorist organizations targeting the United States is reasonable within the
meaning of the Fourth Amendment. Efforts to monitor the activities of such
individuals to detect and forestall possible te rrorist attacks on this country
present a paradigm case of a compelling government interest. The protections
extended by the Fourth Amendment to foreign individuals abroad, if any, are
minimal and plainly outweighed by the paramount national interest in
preventing foreign attacks on our nation and its people.
51
But while the warrantless surveillance of foreign individuals abroad under
the circumstances that existed here presents no cognizable constitutional
problem, we must nevertheless still consider what protections the Fourth
Amendment provides individuals located within the United States who
communicate with the foreign individuals abroad lawfully targeted under
Section 702.
The second Fourth Amendment principle implicated by incidental
collection speaks directly to that concern. The Fourth Amendment generally is
not violated when law enforcement officers, having lawfully undertaken
electronic surveillance, whether under the authority of a warrant or an exception
to the warrant requirement, discover and seize either evidence of criminal
activity that they would not have had probable cause to search for in the first
place, or the relevant conversations of an individual they did not anticipate or
name in a warrant application. See, e.g., United States v. Donovan, 429 U.S. 413,427
& n.15 (1977) (noting, as to domestic wiretaps, "[i]t is not a constitutional
requirement that all those likely to be overheard engaging in incriminating
conversations be named."); United States v. Figueroa, 757 F.2d 466,472 (2d Cir.
1985) ("More particularly, the mere fact that Title III allows interception of
52
conversations of 'others as yet unknown' do es not render the statute
unconstitutional on its face as authorizing a general warrant.'').
This line of cases has come to be known as the "incidental overhear"
doctrine. See, e.g., Suppression Decision, 2016 WL 1029500 at ""9 (noting that
"[ c]ourts have long dealt with the issue of incidental interception of non-targeted
persons' communications" and collecting cases). Courts have repeatedly held
that law enforcement agents do not need to obtain a separate warrant to collect
conversations of persons as to whom probable cause did not previously exist
with individuals whose oral or wire communications are being collected through
a lawful wiretap or bug, where those conversations on their face contain
evidence of criminal activity.17 See, e.g., Donovan, 429 U.S. at 427 & n.15; Figueroa,
757 F.2d at 472; see also In re Certified Question of Law, 858 F.3d 605 (FISA Ct. Rev.
2016) (finding incidental collection of content information reasonable where
warrant was obtained only for non-content dialing information); United States v.
17The "incidental overhear" doctrine is closely related to the "plain view"
doctrine applied in connection with physical searches. See, e.g., Coolidge v. New
Hampshire, 403 U.S. 443, 465-67 (1971) (describing plain view doctrine and noting
that "[t]he doctrine serves to supplement the prior justification - whether it be
a warrant ... , hot pursuit, search incident to lawful arrest, or some other
legitimate reason for being pr esent unconnected with a search directed against
the accused - and permits the warrantless seizure."}.
53
Stewart, 590 F.3d 93, 129 (2d Cir. 2009) (concluding. in challenge to Title I FISA
surveillance, that "[b]ecause Stewart's co-conspirators were targeted pursuant to
proper procedures, the Fourth Amendment did not require that Stewart also be
identified or described as a target in order for her intercepted conversations to be
used in a criminal prosecution.'') (internal citation omitted).
Combining these two Fourth Amendment principles, the government may
lawfully collect, without a warrant and pursuant to Section 702, the e-mails of
foreign individuals located abroad who reasonably appear to constitute a
potential threat to the United States and, once it is lawfully collecting those e-
mails, it does not need to seek a warrant, supported by probable cause, to
continue to collect e-mails between that person and other individuals once it is
learned that some of those individuals are United States citizens or lawful
permanent residents, or are located in the United States. Accord Mohamud, 843
F.3d at 441; see also United States v. Mohammad, 339 F. Supp. 3d 724, 748-49 (N.D.
Ohio 2018) (applying Verdugo-Urquidez and rejecting Fourth Amendment
challenge to Section 702 surveillance where, despite marriage to United States
citizen, defendant lived abroad at time of offense); United States v. Muhtorov, 187
F. Supp. 3d 1240, 1258 (D. Colo. 2015) (rejecting facial and as applied challenge to
54
incidental collection under Section 702 and concluding that a warrant was not
acquired and search as reasonable). That is the case even if the government
would have needed, but did not have, a warrant or probable cause had it sought
to collect the e-mails of the American third party in the first instance. Cf. In re
Certified Question, 858 F.3d at 604 (framing constitutional issue as whether
incidental content collection rendered primary dialing information collection
unreasonable, not whether warrant would have been required for content
collection in its own right).
Objecting to this conclusion, Hasbajrami and amici advance several
arguments seeking to apply the warrant requirement to Hasbajrami's case. Each
is unavailing.
First, they argue that Verdugo-Urquidez does not control the outcome here
because Section 702 collection occurs in the United States. Practically speaking,
Section 702 surveillance could occur only within the United States, as the agencies
can compel only ISPs located in the United States to provide e-mails.
But Fourth Amendment doctrine relating to wire or electronic
communication does not focus on the location where the communication takes
place. Katz v. United States, 389 U.S. 347 (1967), the seminal Supreme Court
55
decision on the interception of such communication, holds that a person's
privacy interest in his or her communications does not depend on whether the
government ph ysically intrudes into a physical space in which that person has a
property interest or an expectation of physical privacy. What matters, and what
implicates the protection of the Fourth Amendment, is the expectation of privacy
in the communications themselves, and therefore a warrant is required to seize
even those communications made in a public telephone booth. Conversely, by
the same reasoning, a person who does not have a Fourth Amendment-protected
privacy interest in his communications, such as a foreign national resident
abroad, does not acquire such an interest by reason of the physical location of the
intercepting device. At least where the communication is collected essentially in
real time as it occurs, the targeted communication, whether conducted over
telephone wires or via the internet, occurs in the relevant sense where the person
whose calls or e-mails are being intercepted is located, regardless of the location
of the means used to intercept it.
Second, Hasbajrami argues that the surveillance cannot be properly
considered "incidental" where the government can or even does expect to collect
conversations with people with ties to the United States or located within its
56
borders. While we have concerns, expressed below, about the potential scope of
Section 702 surveillance, those concerns are less applicable where, as here,
collection and review are occurring nearly contemporaneously and that
collection is ancillary to lawful surveillance of a permitted target. In the nahlre of
law enforcement, there is always a possibility that the collection of evidence
against a person who there is already probable cause to believe is involved in
criminal activity or who is otherwise legitimately subject to surveillance will also
develop information about others not previously reasonably suspected of
wrongdoing. There is no contention here that the Section 702 surveillance was
undertaken as a pretext to collect the communications of Hasbajrami, or of any
other identified United States person or person located in the United States. That
the overall practice of surveilling foreigners abroad of interest to the legitimate
purpose of gathering foreign intelligence information may predictably lead to the
interception of communications with United States persons no more invalidates
that practice, or requires the government to cease its surveillance of the target
until a warrant is obtained, than the general foreseeability of intercepting
communications with previously unknown co~conspirators undermines the
inadvertent overhear doctrine in ordinary domestic criminal wiretapping.
57
11
Finally, Hasbajrami and amid seek to distinguish the incidental overhear"
line of cases, noting that in those cases there was already an initial warrant
supported by probable cause. They agree, however, that "the incidental overhear
cases simply stand for the proposition that the government need not obtain
multiple warrants to intercept protected communications." Brief of Amici Curiae
American Civil Liberties Union and Electronic Frontier Foundation at 15, United
States v. Hasbajrami, No. 15-2684 (2d Cir. Oct. 23, 2017} (emphasis in original).
That is exactly the point here: once that initial surveillance is rendered lawful by
a warrant, a FISC order, or some other exception to the warrant requirement, an
additional warrant is not necessary in order to collect the calls or e-mails of third
parties. As the district court recognized, once the surveillance was "lawful in the
first place -whether it is the domestic surveillance of U.S. persons pursuant to a
warrant or the warrantless surveillance of non-U.S. persons who are abroad -
the incidental interception of non-targeted U.S. persons' communications with
the targeted persons is also lawful." Suppression Decision, 2016 WL 1029500 at ""9.
The reason why the initial surveillance was lawful does not matter to this
conclusion.
58
Accordingly, the incidental collection of United States persons' e-mails
during lawful foreign intelligence surveillance of foreigners located abroad is not
per se unreasonable because the collection is done without a warrant.
B. Incidental Collection of E-mails under Section 702 is Reasonable
Even absent a warrant requirement, however, the government's action
must still be reasonable, at least insofar as it affects United States persons, to be
consistent with the Fourth A mendment. King, 569 U.S. at 448. "To determine
whether a search is reasonable under the Fourth Amendment, we examine the
totality of the circumstances to balance, on the one hand, the degree to which it
intrudes upon an individual's privacy and, on the other, the degree to which it is
needed for the promotion of legitimate government interests." ln re Terrorist
Bombings, 552 F.3d at 172 (internal quotation marks omitted).
For the purposes of Hasbajrami's appeal, we may assume that a United
States person ordinarily has a reasonable expectation in the privacy of his e-mails
sufficient to trigger a Fourth Amendment reasonableness inquiry when the
government undertakes to monitor even foreign communications in a way that
can be expected to, and in fact does, lead to the interception of communications
with United States persons. See, e.g., United States v. Warshak, 631 F.3d 266, 285-86
59
(6th Cir. 2010) (analogizing between letters and e-mails and finding reasonable
expectation of privacy). In other words, we can assume that the government may
not eavesdrop, without reasonable justification, on the conversations of United
States persons (even abroad) with foreign nationals, simply because the United
States person is interacting with a foreigner. Even assuming that a United States
person might be understood to take some risk that the person with whom he or
she is communicating is under surveillance, it does not follow that an American
communicating with a foreign national must take the risk that the person with
whom he is communicating is subject to unreasonable, or indiscriminate,
electronic surveillance, or that communicating with foreigners subjects the
American national himself or herself to continuing surveillance.
But such a privacy interest can be outweighed by the government's
"manifest need to monitor'' the communications of foreign agents of terrorist
organizations operating abroad, and this need outweighs that interest in privacy
and makes the incidental collection of communications between such foreigners
and United States persons reasonable. In re Terrorist Bombings, 552 F.3d at 172.
Even in the context of conventional warfare, identifying domestic agents of
foreign powers is a principal concern of intelligence-gathering. The need to
60
identify potential domestic co�conspirators of hostile foreign persons or groups is
even greater in the context of informal non-state terrorist organizations and
movements. The recruitment of persons inside the United States or the placement
of agents here to carry out terrorist attacks is one of the very threats that make it
vital to surveil terrorist actors abroad. The communications of terrorist
operatives abroad with persons inside the United States is thus of particular
importance, and at least as important as monitoring the communications of
foreign terrorists abroad among themselves. 18
The logic of this conclusion is dear and compelling. If it is reasonable -
and indeed necessary to the national security - for intelligence agencies to
monitor the communications of suspected forei gn terrorists abroad, the need to
keep track of the potential threat from abroad does not lessen because some of
the suspect's contacts turn out to be American nationals, or foreign nationals
located within the United States. And when the conversations being monitored
18The same reasoning defeats any argument that such monitoring should be
limited to the acquisition of forei gn intelligence, and that communications
collected for that purpose should not be made available to domestic law
enforcement agencies. There is little point in having intelligence agencies collect
information abroad if those agencies are not able to share what they learn with
domestic law enforcement when the information they acquire points to ongoing
or impending criminal activities inside our borders.
61
constitute evidence of criminal conspiracies between the foreign operative and
someone located within the United States, the urgency becomes greater, not less.
The logic of the plai n view and inadvertent overhear cases fully applies: when an
officer executing a lawful search or electronic surveillance warrant, or otherwise
engaged in a lawful search, comes upon evidence of a previously unsuspected
crime, or learns of the involvement of a previously unsuspected individual, the
officer is not required to stop and obtain a new warrant to seize the item or to
continue monitoring the phone line for which the warrant was obtained. The
seizure of evidence of a crime in plain view without a warrant is a reasonab le
seizure. In the same way., when evidence of a potential crime involving an
American comes to light during the lawful surveillance of a foreign operative
abroad, it is entirely reasonable within the meaning of the Fourth Amendment
for the government to continue monitoring the conversations of that operative
with the American as well as with his or her other associates. 1'.I
19
Of course, if the government wishes to expand the investigation to monitor the
communications of the newly discovered United States-connected suspect, it
-
would be required to obtain a conventional Title III or traditional PISA warrant
62
In balancing Hasbajrami's privacy interest with the government's concern
for national security, then1 we conclude that the totality of the circumstances here
weighs in the government's favor. The incidental collection of communications
between targeted foreigners abroad and United States persons or persons in the
United States is thus reasonable. For similar reasons, when the intelligence
information properly collected raises reasonable grounds to believe that a crime
is being committed or planned in the United States, dissemination of the
information to a domestic law enforcement agency such as the FBI is also
reasonable.
In summary, the district court reached the correct conclusions regarding
incidental collection: the initial targeting of individuals without ties to the United
States and located abroad is lawful; there is no need for a wanant in order to
collect incidental communications by United States persons to and from those
individuals; and both the collection of such communications and the
dissemination of information from such collection about potential criminal
actions within the country to domestic law enforcement are reasonable under the
Fourth Amendment. Were such incidental collection the only Section 702
material relevant to Hasbajramts motion, we would simply affirm the district
63
court's ruling. But, as the record rurrently stands, we must also consider
additional issues.
II. "Inadvertent" Collection
The district court's ruling on the suppression motion did not address
whether any e-mail accounts of United States persons or individuals within the
United States, including Hasbajrami, had been "inadvertently" targeted, that is,
targeted by mistake under the presumption that an address was controlled by a
non-United States person.
Upon reviewing the classified record, in particular its ex parte proceedings
under the Classified Information Procedures Act ("CIP A"), 18 U.S.C. app. 3, § 1 et
seq., it is clear that the district court was made aware of one instance of the direct
targeting of an e-mail account controlled by a United States person that resulted
in the collection of Hasbajrami's communications. Before the incidental collection
discussed above, the NSA had directly targeted at least one such e-mail address.
Like the later incidental collection, the NSA had originally been monitoring
communications with individuals it reasonably believed were non-United States
persons located abroad, and as a result discovered an e-mail from the United
States person. At that time, however, NSA analysts concluded, wrongly, that the
64
account holder was not a United States person. The NSA therefore tasked the
account (a different account than those that were the subject of incidental
collection detailed above) in its own right, and collected communications from
the account for several weeks. The agency eventually detasked the account after
it concluded it was not yielding significant intelligence information, but it did
not initially purge the information because it did not discover until later that the
account holder was a United States person. The related Section 702-acquired
material, which included communications to and/or from Hasbajrami, stayed in
NSA databases, however, and was not disseminated to domestic law
enforcement, until the agency conducted a search of these databases in 2014
following the initiation of Hasbajrami's prosecution.
The inadvertent collection of communications raises complicated
questions. First, as a statutory matter, Section 702 prohibits the targeting of e­
mail accounts that the government knows to be maintained by United States
persons. See 50 U.S.C. § 1881a(b). But the statute thus appears to prohibit only
knowing or intentional targeting, and not to address situations where the
government is mistaken, reasonably or unreasonably. Does the express
prohibition of targeting accounts known to be those of United States persons
65
implicitly authorize the targeting of any account not known with certainty to be
that of a United States person? If there is evidence of a high likelihood that the
account belongs to a United States person and the government proceeds to target
it without taking steps to investigate further, does the willful blindness standard,
which equates such deliberate indifference to actual knowledge in many legal
contexts, apply? Cf. Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766-69
(2011) (discussing willful blindness doctrine).
Second1 the Fourth Amendment calculus for such collection would be
different than the one employed in considering incidental collection. Incidental
collection is justified because the "target" of the surveillance cannot rely on the
Fourth Amendment's protections, as discussed above. But a United States citizen
or lawful permanent resident, located in the United States, assuming a
reasonable expectation of privacy, would be protected by the Fourth
Amendment. Is the Fourth Amendment prohibition of "unreasonable" searches
violated if the government unreasonably (recklessly or negligently) concludes
that the targeted account is that of a foreigner located abroad? Is it permissible
for the government to adopt a presumption that, under all circumstances or in
the presence of one or more key indicia, an account holder whose identity is
66
unclear should be treated as foreign? Would the later discovery that the account
did indeed belong to a United States person require the minimization, or the
suppression in a criminal case, of inadvertently collected conversations?
A district court reviewing a motion to suppress evidence inadvertently
collected (or derived from inadvertent collection) would have to address these
issues, and perhaps others, in deciding whether the government's reliance on
inadvertent collection in an investigation or prosecution was reasonable within
the meaning of the Fourth Amendment.
But we need not decide those questions today because we are satisfied that
any inadvertent collection disclosed to the district court was harmless. The
interception of communications from the inadvertently targeted account was
brief, lasting only approximately two weeks. The materials collected, whatever
they were, were not used in applying for the FISA warrant - indeed, their very
existence seems to have been unknown to anyone involved in the criminal
investigation of Hasbajrami, as the inadvertent targeting of the account in
question was not even discovered by th e government until well into the
prosecution of this case. And finally, the collection was terminated because the
government itself determined that nothing of any intelligence value was being
67
learned. Presumably that conclusion would not have been reached if the
collected conversations were indicative of criminal terrorist plots, or were of
evidentiary value to a criminal investigation.
Thus, even assuming arguendo that there was some legal infirmity in the
decision to begin collection despite uncertainty about the status of the account, or
to continue it once at least some evidence pointing to a possible United States
source for the account was discovered, we conclude, even in the context of a
conditional guilty plea, that the failure to suppress the results of that collection
was harmless beyond any reasonable doubt.
III. Querying
There is a third issue in this case, however: the storage of Section 702
information in databases and the subsequent querying of those databases by the
government. The district court did not make any findings regarding whether the
NSA, the FBI or any other agency queried databases with regard to Hasbajrami
prior to the FISC order. Instead, it appeared to accept the government's
argument, framed within the context of a discussion of whether the minimization
procedures provided adequate protections so as to make collection reasonable,
that the government could freely query information it had lawfully acquired
68
without further Fourth Amendment inquiry. See Suppression Dedsion, 2016 WL
1029500 at *12 n.20 ("I agree with the government that it would be perverse to
authorize the unrestricted review of lawfully collected information but then
restrict the targeted review of the same information in response to tailored
inquires.") (internal alterations and quotation marks omitted).
The government renewed this argument on appeal. FoUowing oral
argument, during which the government would neither confirm nor deny
whether it had queried any databases of Section 702-acquired information, this
Court ordered further briefing. The government
Cov't Supplemental Classified Br. at 6-7 (emphasis added).
69
Like inadvertent collection, the storage and querying of information raises
challenging constitutional questions, to which there are few dear answers in the
case law. Cf. In re Directives, 551 F.3d at 1015 (dismissing petitioner's concerns,
under the PAA, because the "government assures us that it does not maintain a
database of incidentally collected information from non-targeted United States
persons, and there is no evidence to the contrary."). The issue was not addressed
by the Ninth Circuit inMohamud, which explicitly left open the question of
whether "the incidental overhear doctrine permits the unconstitutional and
widespread retention and querying of the incidentally collected information,"
stating that the issue was "not before [the court]." 843 F.3d at 440 n.24. The
district court in Mohamud did reach the question, however, and it concluded that
the "subsequent querying of a§ 702 collection, even if U.S. person identifiers are
used, is not a separate search and does not make § 702 surveillance unreasonable
under the Fourth Amendment." United States v. Mohamud, No. 3:10-cr-475-KI-1,
2014 WL 2866749, at *26 (D. Or. June 24, 2014), affd, 843 F.3d 420 (9th Cir. 2016).
We do not find that logic persuasive. Storage has little significance in its
own right: the lawfully-collected communications, even of United States persons,
continue to serve the same foreign intelligence purpose in the continued
70
surveillance of a foreign operative, whether his interlocutor is a United States
person or a citizen and resident of some other country. The material is justifiably
retained, not to keep tabs on a United States person, but to keep tabs on the non­
United States person abroad who has been targeted.20
But querying that stored data does have important Fourth Amendment
implications, and those implications counsel in favor of considering querying a
separate Fourth Amendment event that, in itself, must be reasonable. Our
reasoning is based on three considerations.
First, courts have increasingly recognized the need for additional probable
cause or reasonableness assessments to support a search of information or objects
that the government has lawfully collected. It is true that the FBI does not need
an additional warrant to go down to its evidence locker and look through a box
of evidence it collected from a crime scene. But lawful collection alone is not
always enough to justify a future search.
In Riley v. California, the Supreme Court held that a warrant was necessary
to search a cell phone, even when that cell phone was lawfully seized pursuant to
20The considerations might be different if the storage involved data responsive to
a warrant and retained for the purpose of a domestic criminal prosecution. This
Court, sitting en bane, considered similar issues in United States v. Ganias, 824 F.3d
199 (2d Cir. 2016), although we ultimately did not need to decide them.
71
a search incident to a lawful arrest. 573 U.S. 373, 401 (2014). Several circuit court
decisions have reached similar conclusions. In United States v. Sedaghaty, for
instance, the government had searched a defendant's home pursuant to a
warrant focused on tax violations. 728 F.3d 885,912 (9th Cir. 2013). Agents seized
nine computers, which forensic experts searched with "an evolving list of search
terms" in order "to comb through the computers for useful materials,"
eventually finding evidence confirming the defendant was supporting Chechen
terrorist groups. Id. The Ninth Circuit concluded that the searches beyond the
scope of the warrant were improper, noting that the government "should not be
able to comb through [the defendant's] computers plucking out new forms of
evidence that the investigating agents have decided may be useful" after it failed
to find evidence of willfulness regarding the tax returns. Id. at 913. To do so
required a new warrant, even though the government already had access to the
machines and had lawfully seized them. See also United States v. Runyan, 275 F.3d
449, 464-65 (5th Cir. 2001) (finding that police exceeded the scope of a private
search when they "examined disks that the private searchers did not examine"
and would have required a warrant to do so); United States v. Mulder, 808 F.2d
1346, 1349 (2d Cir. 1987) (holding that a separate warrant was needed to test
72
packages in suitcase for drugs, even though the suitcase was lawfully sei.1.ed via
private search).
Second, Section 702 is sweeping in its technological capacity and broad in
its scope. In the case of the incidental collection discussed above, - was
collecting and reviewing e�mails for its own foreign intelligence purposes in
, and reporting �vidence that it obtained suggesting
on-going criminal activity in the United States. Such activity is closely analogous
to precedents drawn from traditional domestic criminal wiretapping. As
discussed above, it is not difficult to conclude that, like "incidentally overheard"
criminal conversations and evidence of crimes seized in plain view, the collection
and use of information obtained in this way is reasonable within the meaning of
the Fourth Amendment.
But the vast technological capabilities of the Section 702 program,
estimated by the PCLOB as totaling nearly 250 million e-mails annually by 2011
and likely larger numbers since then, may mean that analysts are not reviewing
each of those e-mails contemporaneously with their collection. PCLOB Report at
116, 128-29. If such a vast body of information is simply stored in a database,
available for review by request from domestic law enforcement agencies solely
73
on the speculative possibility that evidence of interest to agents investigating a
particular individual might be found there, the program begins to look more like
a dragnet, and a query more like a general warrant, and less like an individual
officer going to the evidence locker to check a previously-acquired piece of
evidence against some newfound insight
The Supreme Court has expressed increasing concern about the interaction
between Fourth Amendment precedent and evolving government technological
capabilities. Riley rested in part on the fact that "[c]ell phones ... place vast
quantities of personal information literally in the hands of individuals." 573 U.S.
at 386. "A search of the information on a cell phone [ therefore] bears little
resemblance to the type of physical search considered" in past cases. Id.; see also
Ganias, 824 F.3d at 217-18 (noting privacy implications of expansive technology
and data storage). And in Carpenter, the Court concluded that a warrant (or a
valid substitute) was required to acquire cell-site records, even though they were
stored by a third party and under traditi onal Fourth Amendment doctrine a
cellphone user would not have an expectation of privacy in such information:
We decline to grant the state unrestricted access to a
wireless carrier's database of physical location
information. In light of the deeply revealing nahlre of
[this information], its depth, breadth, and
74
comprehensive reach, and the inescapable and
automatic nature of its collection, the fact that such
information is gathered by a third party does not make
it any less deserving of Fourth Amendment protection.
The Government's acquisition of the cell-site records
here was a search under that Amendment.
Carpenter v. United States, 138 S. Ct. 2206, 2223 (2018).
Third, as a practical matter, querying is problematic because it may make
it easier to target wide-ranging information about a given United States person at
a point when the government knows it is investigating such a person. Section 702
forbids the government from targeting a non-United States person as a backdoor
way of targeting a United States person. 50 U.S.C. § 1881a(b). But, as detailed
above, in the course of its intelligence gathering operations, the NSA may have
collected all sorts of information about an individual, the sum of which may
resemble what the NSA would have gathered if it had directly targeted that
individual in the first place. To permit that information to be accessed
indiscriminately, for domestic law enforcement purposes, without any reason to
believe that the individual is involved in any criminal activity and or even that
any information about the person is likely to be in the database, just to see if
there is anything incriminating in any conversations that might happen to be
there, would be at odds with the bedrock Fourth Amendment concept that law
75
enforcement agents may not invade the privacy of individuals without some
objective reason to believe that evidence of crime will be found by a search.
Treating querying as a Fourth Amendment event and requiring the query itself
to be reasonable provides a backstop to protect the privacy interests of United
States persons and ensure that they are not being improperly targeted.
Fourth, much may dep end on who is querying what database. There is a
potentially significant difference between, for example, the FBI querying its own
database and the FBI requesting that the NSA query its far larger archive of
collected communications, collected pursuant to a broader mandate. As we
understand the public sources of information about the collection and use of
Section 702 material, the FBI maintains its own records of communications
provided to it by the NSA. See PCLOB Report at 58-59. Such communications
presumably were provided because review of the material properly collected by
the NSA under Section 702 uncovered evidence of criminal activity (relating to
terrorism or otherwise), and were appropriately communicated to domestic law
enforcement. Just as the FBI may act on such information where it requires
immediate criminal investigation, it may well be appropriate for the agency to
retain the information and store it for later review when other legitimate
76
evidence or leads make that information relevant to an on-going investigation.
Such a review of the agency's own files is arguably analogous to traditional law
enforcement techniques; evidence lawfully collected does not always accumulate
to a sufficient quantity to warrant an immediate arrest or indictment, but may be
retained and later reviewed when additional evidence is developed. FBI queries
directed to a larger archive of millions of communications collected and stored
by the NSA for foreign intelligence purposes, on the chance that something in
those files might contain incriminating information about a person of interest to
domestic law enforcement, raise different concerns.
What kinds of querying, subject to what limitations, under what
procedures, are reasonable within the meaning of the Fourth Amendment, and
when (if ever) such querying of one or more databases, maintained by an agency
of the United States for information about a United States person, might require
a warrant, are difficult and sensitive questions. We do not purport to answer
them here, or even to canvass all of the considerations that may prove relevant or
the various type s of querying that may raise distinct problems.
Indeed, we cannot do so on the sparse record presented. We do not know
what databases were queried by whom, for what reasons, what (if any)
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information was uncovered by such queries, or what (if any) use was made of
any information uncovered. The government has represented that no
information derived from any such queries was presented to the FISC to obtain
the FISA warrant, but has not addressed whether any such information
contributed to the investigation in other ways.
Given these considerations, the district court here must conduct an inquiry
into whether any querying of databases of Section 702-acquired information
using terms related to Hasbajrami was lawful under the Fourth Amendment. Fo r
today we need only reiterate that "the ultimate touchstone of the Fourth
Amendment is reasonableness." Riley, 573 U.S. at 381; cf Abu 4Jihaad, 630 F.3d at
121-22 (stating that, even in the application of the warrant requirement, the
requirement is "flexible, so that different standards may be compatible with the
Fourth Amendment in light of the different purposes and practical
considerations at issue.") (internal quotation marks and citations omitted).
We cannot, and should not, go further, pending development of a more
complete record by the district court on remand, and an assessment by the
78
district court as to whether whatever was done was consistent with the Fourth
Amendment and whether, if there was any illegality, any evidence should have
been suppressed in response to Hasbajrami' s motion.21
IV. Hasbajrami's Conditional Plea and Resolution of the Motion to
Suppress
As addressed above, there is still an open issue as to what queries of
Section 702-acquired information occurred in this case, whether any such queries
were reasonable and, if unreasonable, whether the queried information tainted
the application before the FISC or in some other way would lead to the
suppression of any evidence.
But in its post•argument briefing, the government argues that even if it did
query Section 702 databases, that action ultimately could not matter because the
11On November 14, 2019, Hasbajrami filed a Rule 280) letter alerting this Court
to three recently declassified opinions from the FISC and FISCR. See In re
DNI/AG 702(h) Certifications 2018, 941 F.3d 547 (FISA Ct. Rev. 2019); Redacted
(FISA Ct. Sep. 4 , 2019); Redacted, 2018 WL 9909971 (PISA Ct. O ct. 18, 2018). Based
on our review, we do not believe that these opinions substantively affect our
decision because, even to the extent that their approach differs from ours, they
are not binding on this Court. Since we are remanding for the district court to
further assess this issue with the benefit of a more complete record, we decline to
engage further at this time. We did not find it necessary to review the unredacted
versions of these opinions in reaching this conclusion and, therefore,
Hasbajrami's request for access to the unredacted versions of these opinions is
DENIED.
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communications collected as a result of incidental collection would provide an
independent source sufficient to support the FISC's probable cause
determination. Gov't Supplemental Classified Br. at 9 (arguing that "this Court's
analysis should be limited to alleged 'searches' where a causal link can be drawn
between the search and the acquisition of the evidence that Hasbajrami seeks to
suppress.").
The government relies primarily on Murray v. United States, 487 U.S. 533
(1988). In Murray, federal law enforcement agents surveilling the defendant
witnessed him drive into a warehouse in South Boston. Id. at 535. Agents
arrested the defendant and a co-conspirator after they drove away from the
warehouse and, upon arrest, the agents discovered marijuana in the defendant's
truck. The agents then forced entry into the warehouse, where they "observed in
plain view numerous burlap-wrapped bales that were later found to contain
marijuana. They left without disturbing the bales, kept the warehouse under
surveillance," and re-entered only after obtaining a warrant. Id. In applying for
the warrant, however, the agents did not advise the court of their prior entry;
they also did not rely on their observations of the contents of the warehouse in
order to establish probable cause. Id. at 536. The Supreme Court held that
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suppression of the evidence eventually seized from the warehouse would not be
required "if the warrant-authorized search of the warehouse was an independent
source of the challenged evidence.'' Id. at 543-44. Although "[k)nowledge that the
marijuana was in the warehouse was assuredly acquired at the time of the
unlawful entry ... it was also acquired at the time of entry pursuant to the
warrant, and if that later acquisition was not the result of the earlier entry there is
no reason why the independent source doctrine should not apply. 1' Id. at 541.
Even assuming the government was querying databases simultaneously
with its incidental collection activities, according to the government's position its
agents would be analogous to the agents in Murray. Their subjective
understanding of the evidence might have been affected by the fruits of an
unreasonable search, and had they relied on that evidence in support of a
warrant application they might not be able to use the evidence obtained by
executing that warrant. But, according to the government, if the information they
placed before the FISC, and that court's subsequent probable cause
determination, rested on other information, that "later acquisition was not the
result of the earlier [search]1' and so "there is no reason why the independent
source doctrine should not apply." Id. at 541.
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We cannot apply the independent source doctrine on the record currently
before us. Had this case gone to trial, our task would be significantly different.
Under those circumstances, we could have undertaken to trace, as the Ninth
Circuit did in Mohamud, 843 F .3d at 438 & n.21, individual pieces of evidence that
had actually been presented to the jury at that trial in order to assess whether
those pieces of evidence had been obtained consistent with the Fourth
Amendment. And if individual pieces of evidence needed to be suppressed, the
Court could then decide whether the admission of any given piece of evidence
was harmless when compared to all the legally obtained evidence that was
ultimately presented at trial.
But we are not reviewing the acquisition of evidence used at a trial. Rather,
Hasbajrami's appeal reaches us following a conditional plea made pursuant to
Rule ll(a}(2) of the Federal Rules of Criminal Procedure. Rule l l(a)(2) provides
that:
With the consent of the court and the government, a
defendant may enter a conditional plea of guilty or nolo
contendere, reserving in writing the right to have an
appellate court review an adverse determination of a
specified pretrial motion. A defendant who prevails on
appeal may then withdraw the plea.
82
According to the Advisory Committee Notes to the 1983 Amendments,
conditional pleas should be permitted 11only when the decision of the court of
appeals will dispose of the case either by allowing the plea to stand or by such
action as compelling dismissal of the indictment or suppressing essential
evidence." See also United States v. Bundy, 392 F.3d 641, 647-48 {4th Cir. 2004). The
classic example of a case in which that standard is met is a narcotics case in
which the evidence sought to be suppressed is the very basis of the charge. The
suppression of the evidence would end the case; if the evidence is admissible,
guilt is assured; if not, no evidence of guilt remains. The situation is more
problematic and complicated, however, where the suppression of some but not
all of the evidence in the case is a possible outcome.
Our sister circuits have applied a harmless error calculation when
evaluating whether an opportunity to withdra,w a plea is a necessary remedy
after it is determined on appeal that the challenged district court ruling was, in
whole or in part, erroneous. See, e.g., United States v. Lustig, 830 F.3d 1075, 1086
(9th Cir. 2016); United States v. Rivera-Nevarez, 418 F.3d 1104 (10th Cir. 2005)
(affirming conviction on harmless error where conviction was upheld on
83
grounds not considered by district court). 22 Those courts have applied the
harmless error rule by asking "whether the erroneous suppression ruling could
have affected [the defendant's] decision to plead guilty.'' Lustig, 830 F.3d at 1086.
But the record here is murky. It is clear that the presence or absence of
Section 702 surveillance affected Hasbajrami' s initial decision to plead guilty.
Indeed, it was because the district court was convinced that Hasbajrami's initial
decision to plead guilty was predicated in part on his lawyers' assurance that the
government had represented that there was no warrantless surveillance in his
case that it granted the defense motion to withdraw Hasbajrami's first guilty plea
when those representations were revealed to have been inaccurate. App'x at 39
(noting that Hasbajrami "specifically asked [his counsel] about whether
warrantless wiretaps had played a role in his case. After they informed him that
such wiretaps were not part of the evidence, he was more willing to plead
guilty."). Moreover, Hasbajrami moved to suppress all Section 702 material
22The Advisory Committee also considered Fed. R. Crim. P. ll(h)'s harmless
error calculus to apply, but it noted that, without full factual development,
invocation of the harmless error rule would be difficult. The Committee noted,
however, that "relatively few appellate decisions result in affirmance upon
[harmless error]. Thus it will only rarely be true that the conditional plea device
will cause an appellate court to consider constitutional questions which could
otherwise have been avoided by invocation of the doctrine of harmless error."
Fed. R. Crim. P. 11, advisory committee's notes to 1983 amendments.
84
collected by the government, including matter that was not presented to the FISC
to obtain the traditional FISA warrant. What is unclear is just how much Section
702-acquired information would remain, after further fact-finding at the district
court. It may be that, after a full evaluation of the record in light of Hasbajrami's
motion to suppress, the evidence available to the government remains very much
intact. For all we know, any queries conducted by the government may have
been entirely reasonable, they may not have yielded any evidence at all, and any
material that was uncovered even by a putatively unconstitutional query may
not have affected the investigation in any way.
However those matters would be decided on remand, though, we cannot
predict here whether any such queries were constitutionally questionable, or
whether any information derived from such queries should itself have been
suppressed, or directly or indirectly tainted the warrant application. And,
without being able to fully predict or decide either of those issues, we also cannot
adequately predict whether a potentially-altered evidentiary landscape "could
have affected [Hasbajrami's] decision to plead guilty." Lustig, 830 F.3d at 1086;
see also United States v. uake, 95 F.3d 409, 420-421 (6th Cir. 1996) (noting that Fed.
R. Crim. P. ll(a)(2) addresses the situation in which "the defendant is fully
85
successful on appeal," and not "the effect of a partially successful appeal/ but
vacating judgment because "[ defendant was] successful in excluding what
appears to be the most damning evidence against him.") (emphasis in original).
Taking these considerations into account, then, we are left with a posture
similar to that faced by this Court in United States v. Wong Ching Hing, 867 F.2d
754 (2d Cir. 1989). The defendant in that case had reserved his right to appeal the
district court's failure to suppress roadside statements made to police without
Miranda warnings, as well as subsequent statements made at a police station. Id.
at 756. This Court, like the district court, found that the roadside statements were
voluntary and that supp ression was therefore unnecessary as to those. Id. But the
defendant had made two separate sets of statements to law enforcement once
detained at the police station. The first set was made to the state police, and it did
not add anything to what he had voluntarily provided at the initial stop. The
second set of statements, however, was made to a DEA agent and "formed the
basis of the information to which Wong pled guilty," which charged him with
making a false statement. Id.
The Court concluded that the circumstances "may well warrant the
conclusion that the detention was not valid as a Terry stop." Id. at 758. But it was
86
unclear what effect such a holding would have on Wong's legal position, because
the record was not clear as to whether the conditional guilty plea was
"conditioned upon the government's being successful in admitting all of the
statements or any one of them." Id. at 758 (emphasis added). The Court therefore
vacated the judgment and remanded to the district court for "further
proceedings," noting that the government had also urged affirmance on an
alternative ground and that "the parties will not be precluded from asserting
new arguments" on remand. ld.
We therefore follow a similar course of action here. Because the district
court was not even aware whether such querying had occurred, and because
even we have not been advised as to what was done, for what reasons, and with
what results, we remand to the district court to determine the facts, consistent
with the considerations stated above, and to decide in the first instance, based on
its fachlal findings, whether there was a constitutional violation in this particular
case, and what (if any) evidence would need to be suppressed if there was
indeed a violation. Similarly, we leave it to the district court to determine, in the
first instance., whether any exceptions to the exclusionary rule, such as a good
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faith exception, might apply in this case. 23 Finally, we leave it to the district court
to determine, if any evidence should have been suppressed, whether the failure
to suppress that evidence was harmless, and if it was not what remedy is
appropriate.
On remand, the district court should undertake whatever proceedings are
necessary, consistent with the considerations stated above. To the extent that any
decisions must be made about what information is to be presented to
appropriately-cleared defense counsel, such decisions too are best left to the
district court after it becomes clear what the inquiry about querying will
involve. 24 Cf Abu-Jihaad, 630 F.3d at 129 (noting that, under FISA, disclosure is
23
The government has argued before this Court that the good faith exception
would apply. Because of the incomplete record here, we take no position as to
whether the exception applies.
24 Hasbajrami argues on appeal that his due proces s rights would be violated if
he is not provided with an unredacted or unmodified version of the district
court's order. He concedes, however, that the argument would be rendered moot
if this Court reverses on either constitutional or statutory grounds. After
reviewing the minor redactions, we conclude that the limited information
redacted from the district court's opinion could not have substantially affected
Hasbajrami' s due process rights in this appeal. In any event, we undertook de
novo review and we are satisfied that the limited redactions in the portions of this
opinion relating to the district court's rulings do not require disclosure to the
defense at this time . We therefore deny Hasbajrami's request to unseal or to
disclose to the defense team the redacted portions of the district court opinion.
As addressed above, however, the district court remains free to consider, in the
88
exception and ex parte, in camera review is the rule, and that the review of
materials that are "relatively straightforward and not complex" may not
necessarily require adversarial testing).
CONCLUSION
Based on the foregoing considerations, we REMAND to the di strict court
for further proceedings consistent with this opinion.
first instance, what if any classified material, including the government's Rule
280) letter and the redacted portions of this opinion relating to querying, should
be provided to properly-cleared defense counsel on remand, consistent with the
requirements of CIPA and FISA. We therefore DENY Hasbajrami's February 8,
2019 motion for disclosure of the government's Rule 280) letter, without
prejudice to renewal before the district court on remand.
89