Federal court rules warrantless ‘back door’ digital searches unconstitutional in victory for privacy rights

Privacy advocates worried about government overreach were given a victory in federal court when warrantless “back door” digital searches were ruled unconstitutional.

Under the FISA Section 702 program, federal authorities can search without a warrant for digital information in a database gathered in cases unrelated to the subject of the search. Both Democrats and Republicans have approved this evidence-gathering practice despite objections from privacy advocates.

‘We ask Congress to uphold its responsibility to protect civil rights and civil liberties by refusing to renew Section 702.’

Judge LaShann DeArcy Hall of the Eastern District of New York ruled that this kind of warrantless search was unconstitutional in the federal case against Agron Hasbajrami, who was convicted of terrorism charges.

Hasbajrami was arrested in 2011 while he was on the way to Pakistan in order to “join a terrorist organization, receive training, and ultimately fight against U.S. forces and others in Afghanistan and Pakistan,” federal agents said, according to the ACLU.

After he was convicted, the Department of Justice revealed 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.”

The case was sent to Judge Hall, who ruled against the Biden administration and agreed with Hasbajrami that “inadvertent acquisition of Defendant’s communications does not automatically permit the government to search among the acquired communications without a warrant.”

Despite the finding, Hasbajrami will remain in prison.

“While the new opinion holds that the FBI’s Section 702 queries violated the Fourth Amendment, the court ultimately denied the defendant’s motion to suppress the resulting evidence on separate grounds,” said Patrick Toomey of the ACLU.

“As the court recognized, the FBI’s rampant digital searches of Americans are an immense invasion of privacy and trigger the bedrock protections of the Fourth Amendment,” he added. “Section 702 is long overdue for reform by Congress, and this opinion shows why.”

The ruling was issued in December but only released to the public on Tuesday.

The Cato Institute noted that President Donald Trump’s attorney general nominee, Pam Bondi, testified that she supported the FISA Section 702 program, while director of national intelligence nominee Tulsi Gabbard previously opposed it and has changed her mind.

Federal law enforcement officials have argued before Congress that the program is “invaluable” and “indispensable” in their effort to capture terror suspects.

The Electronic Frontier Foundation noted that Section 702 is scheduled to end in April 2026 and called on Congress to vote against extending the program.

“In light of this ruling, we ask Congress to uphold its responsibility to protect civil rights and civil liberties by refusing to renew Section 702 absent a number of necessary reforms, including an official warrant requirement for querying U.S. persons’ data and increased transparency,” the organization said.

“We expect any lawmaker worthy of that title to listen to what this federal court is saying and create a legislative warrant requirement so that the intelligence community does not continue to trample on the constitutionally protected rights to private communications,” they added.

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