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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Tulsi Gabbard flip-flops on Section 702 — Trump's DNI pick now supports much-abused surveillance authority



Lt. Col. Tulsi Gabbard has changed her position on Section 702 of the Foreign Intelligence Surveillance Act, the warrantless surveillance authority that was used to spy on the 2016 Trump campaign and was exploited by the FBI hundreds of thousands of times to spy on American citizens.

Gabbard told Punchbowl News last week that she will support the controversial act if confirmed as President-elect Donald Trump's director of national intelligence.

Section 702 allows the government to spy on foreign nationals outside the U.S. with the compelled aid of electronic communication service providers. While supposedly outward-facing, if an American contacts or is contacted by a foreign national over email, social media, or the phone, the American's communications could potentially be tapped, searched, and stored without a warrant.

Blaze News previously reported that the FBI has admitted that there were at least 278,000 "unintentional" backdoor search queries of the 702 database for the private communications of Americans between 2020 and 2021 alone. Among those citizens swept up into the warrantless 702 searches were Jan. 6 protesters, congressional campaign donors, and BLM protesters.

'Politicians talk a good game about civil liberties.'

In her final days as congresswoman for Hawaii, Gabbard joined Rep. Thomas Massie (R-Ky.) in advancing a bill that would have repealed the Patriot Act and killed nearly all provisions of the FISA Amendments Act of 2008.

Gabbard said in a video at the time:

The Fourth Amendment of the Constitution very specifically prohibits unreasonable searches and seizures without a warrant based on probable cause. But over the last two decades, in part because of information revealed by Edward Snowden, we now know that there have been ongoing breaches of our civil liberties through programs that were instituted through the Patriot Act and the FISA Amendments Act, which basically allowed agencies within our government to conduct mass illegal surveillance on Americans without a warrant or probable cause.

Years later, Gabbard, still apparently a critic of Section 702, noted in a speech at CPAC, "Too many politicians talk a good game about civil liberties, but when it comes time to cast that vote on things like getting rid of secret FISA courts and protecting our Fourth Amendment rights to privacy, they vote on the side of the power elite and against liberty."

In an apparent effort to win over elements of the power elite in the U.S. Senate, Gabbard has adopted a new view on the spying authority.

Gabbard confirmed her flip-flop in a statement to CNN on Friday, noting, "Section 702, unlike other FISA authorities, is crucial for gathering foreign intelligence on non-U.S. persons abroad. This unique capability cannot be replicated and must be safeguarded to protect our nation while ensuring the civil liberties of Americans."

"My prior concerns about FISA were based on insufficient protections for civil liberties, particularly regarding the FBI's misuse of warrantless search powers on American citizens," continued Gabbard, who Trump previously indicated would champion Americans' constitutional rights in the role. "Significant FISA reforms have been enacted since my time in Congress to address these issues. If confirmed as DNI, I will uphold Americans' Fourth Amendment rights while maintaining vital national security tools like Section 702 to ensure the safety and freedom of the American people."

'IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS.'

This consequential about-face may improve Gabbard's chances of confirmation in the U.S. Senate. Her embrace of Section 702 has already won over Oklahoma Sen. James Lankford (R), a longtime supporter of the controversial spying power, who told NBC News' "Meet the Press" Sunday that Gabbard's flip-flop "was a very important piece."

"She voted against that in the House when she was a member of the House of Representatives and had said she wanted changes," said Lankford. "She's now coming and saying, 'Those changes have been done,' because even since she was in Congress, there have been quite a few changes that we've made in Congress to make sure we're protecting the civil rights of Americans."

Lankford previously suggested in a Wall Street Journal podcast on Wednesday that Gabbard should abandon her opposition to the 702 program.

Sen. Tom Cotton (R-Ark.), chairman of the Senate Intelligence Committee, similarly appears pleased by Gabbard's change of heart, telling Punchbowl News on Thursday, "Tulsi Gabbard has assured me in our conversations that she supports Section 702 as recently amended and that she will follow the law and support its reauthorization as DNI."

Trump implored Republicans to "KILL FISA" as it was nearing its expiration date last year, noting, "IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN."

To the great satisfaction of the Biden White House, the Republican-controlled House voted 273-147 in favor of reauthorizing the surveillance bill on April 12, 2024.

Despite the rejection of multiple proposed amendments that might have protected American citizens' privacy from the spying authority Gabbard now supports, Republican Sens. Lankford, John Barrasso (Wyo.), John Boozman (Ark.), Katie Britt (Ala.), Ted Budd (N.C.), Bill Cassidy (La.), Susan Collins (Maine), John Cornyn (Texas), Tom Cotton (Ark.), Mike Crapo (Idaho), Joni Ernst (Iowa), Deb Fischer (Neb.), Lindsey Graham (S.C.), Chuck Grassley (Iowa), Cindy Hyde-Smith (Miss.), John Kennedy (La.), Mitch McConnell (Ky.), Jerry Moran (Kan.), Markwayne Mullin (Okla.), Lisa Murkowski (Alaska), Pete Ricketts (Neb.), Mike Rounds (S.D.), Marco Rubio (Fla.), Dan Sullivan (Alaska), John Thune (S.D.), Thom Tillis (N.C.), Roger Wicker (Miss.), and Todd Young (Ind.) and former Sen. Mitt Romney (Utah) joined forces with Democrats to ensure its reauthorization.

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Here Are The 30 GOP Senators Who Voted To Reauthorize Warrantless Spying Tool

The bill to reauthorize Section 702 passed by a 60-34 vote

Did Speaker Mike Johnson betray Republicans by killing surveillance law amendment?



House Speaker Mike Johnson (R-La.) is under heavy scrutiny from the GOP after he voted to reauthorize FISA, which essentially allows the government to spy on Americans without a warrant.

House conservatives are outraged at Johnson’s decision to break the tie vote by siding with Democrats and the other 86 Republicans who voted in favor of the reauthorization of the surveillance law.

Pat Gray is equally outraged by Johnson’s betrayal, wondering if he can even be called a Republican after such a stunt.

“FISA section 702 passed easily. Its authorization of spying on Americans without a warrant continues through 2026, thanks specifically to Mike Johnson,” he sighs, noting that we need to “limit their time in office” and “make them legislate from their district.”

Sen. Rand Paul (R-Ky.), among many others, also expressed his displeasure with Johnson’s vote on a Fox News exclusive interview when he said, “I’m not so sure there’s a difference between Mike Johnson being in charge and the Democrats being in charge. ... So far, I don’t see a lot of difference.”

“Yeah, me neither,” says Pat.

Unfortunately, conservatives' vexation with Johnson is likely to continue with his upcoming Ukraine-Israel aid bill. To learn more about what’s on the horizon, watch the clip below.


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House votes to reauthorize spying bill that enabled the FBI to violate Americans' rights. Only 59 Republicans voted 'no.'



The House voted 273 to 147 Friday in favor of reauthorizing the surveillance bill that has been exploited by the FBI hundreds of thousands of times to spy on American citizens. Only 59 Republicans reportedly voted against renewing Section 702 of the Foreign Intelligence Surveillance Act.

The bill is now headed to the Senate, where it will likely be passed before the April 19 deadline, to the great satisfaction of its champions in the Biden administration, members of the the House Intelligence Committee, and Attorney General Merrick Garland.

The bill was passed after an amendment requiring the FBI to get a warrant before searching Americans' private communications under Section 702 failed earlier in the day in a 212-212 tie vote.

The congressman who led the amendment, Rep. Andy Biggs (R-Ariz.), blasted the 86 Republicans who helped defeat it, writing, "86 Republicans voted with Joe Biden and the Uniparty to allow the FBI to continue spying on Americans without a warrant. The Swamp is deep."

Rep. Mike Turner (R-Ohio), among the 86, suggested that "this amendment is not about Americans' inboxes and outboxes. This is not about Americans' data. his amendment is about Hezbollah's data, Hamas' data, and the Communist Chinese Party's data," adding "it will make us go blind."

— (@)

Ahead of the vote, Rep. Chip Roy (R-Texas), among those opposed to the reauthorization, said, "So I'm supposed to say I want to grant more power to the intelligence community? More power to the government that is releasing terrorists as we speak onto the streets of Texas? It defies any kind of logic."

Rep. Jim Jordan (R-Ohio), another FISA critic, said, "Holy cow! Pretty soon it's going to be 'everybody gets to get searched for any darn reason they want.' That's not how it works in America, at least not how it's supposed to work."

Former President Donald Trump wrote earlier this week on Truth Social, "KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!"

House Speaker Mike Johnson (R-La.) suggested that while he was once opposed to the reauthorization of Section 702, classified briefings provided him with a "different perspective," reported CNN.

"When I was a member of [the House Judiciary Committee], I saw the abuses of the FBI, the terrible abuses over and over and over … and then when I became speaker I went to the SCIF and got the confidential briefing on sort of the other perspective on that to understand the necessity of section 702 of FISA and how important it is for national security," said Johnson. "And it gave me a different perspective."

The perspective Johnson came to adopt ruled the day. CNN highlighted that only 59 Republicans and 88 Democrats ended up voting against reauthorization.

The new FISA bill entails a two-year authorization instead of a five-year reauthorization, meaning that if Trump is re-elected, he could revamp FISA laws before the end of his second term.

Blaze News previously noted that Section 702 is a provision of FISA first enacted by Congress in 2008 that lets the government spy on foreign nationals located outside the U.S. with the compelled aid of electronic communication service providers. This was the law exploited by the FBI to spy on members of the Trump campaign in 2016 without probable cause.

The Office of the Director of National Intelligence indicated that Congress enacted Section 702 in order to "address a collection gap that resulted from the evolution of technology in the years after FISA was passed in 1978."

"Many terrorists and other foreign adversaries were using email accounts serviced by U.S. companies," claimed the ODNI. "Because of this change in communications technology, the government had to seek individual court orders, based on a finding of probable cause, to obtain the communications of non-U.S. persons located abroad."

Alternatively going through the courts was supposedly too costly "because of the resources required and because the government couldn't always meet the probable cause standard."

While 702 targets must be foreign nationals suspected to be outside the U.S., the FBI has admitted that "such targets may send an email or have a phone call with a U.S. person." Numerous American citizens have, consequently, been subjected to warrantless surveillance and had their private communications both tapped and stored.

The FBI has confessed as much, indicating on multiple occasions that there were at least 278,000 "unintentional" back-door search queries of the 702 database for the private communications of Americans between 2020 and 2021 alone.

Jan. 6 protesters, congressional campaign donors, and BLM protesters are among those who have been swept up into the warrantless 702 searches.

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FISA Reform Failed Because The Whole Point Of Section 702 Is To Spy On Americans

The whole point of Section 702 is to spy on Americans. Why would the intelligence community want to reform it?

Andrew McCabe Acknowledges ‘Mistakes’ In Trump Campaign Investigation As He Pushes Warrantless Surveillance Tool

'We now know there were many mistakes'

Congress will allow the FBI to SPY on YOU but NOT them?!



Congress is voting on whether to re-authorize FISA Section 702, which originated in the Patriot Act. Its re-authorization would allow the FBI to secretly spy on Americans without warrants.

“I remember thinking all they have to do is just change the meaning of terrorist,” Glenn Beck says, recalling the Patriot Act’s passing. “If they decide a group of Americans are terrorists, we’re done. And that’s exactly what they’ve done now.”

“We cannot allow Section 702 to pass,” he continues, adding, “We have given the keys to everything about us to the government, and the government has turned hostile on many Americans.”

Chip Roy is one of the congressmen fighting against it with a bill that has an amendment to add the Fourth Amendment protection. He believes it “could still pass,” but it seems like it won’t as “the speaker has put his finger on the scales.”

Thomas Massie is also fighting its re-authorization.

Massie says that the “biggest red flag” is that there are carve-outs in the bill for congressmen.

“If the FBI is surveilling you using FISA, they’re going into this database and searching with your name, and you’re a congressman, and they’re ostensibly doing it for your own good because they’re worried about the foreign actors — they have to notify you, but only if you’re a congressman, only if you’re a senator or a U.S. representative,” Massie explains.

This notification only applies to incumbent congressmen, not candidates.

“My solution here would just be get a warrant, and then you don’t have to put carve-outs for congressmen,” Massie says.


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House Blocks FISA Reauthorization Bill

The rule was defeated by a vote of 228 nays to 193 yeas

'FBI violated American citizens' 4A rights 278,000 times': Bureau blasted over attempt to put gloss on Section 702



The FBI is attempting to rehabilitate the public image of Section 702 of the Foreign Intelligence Surveillance Act as Congress has until April 19 to reauthorize it. The bureau recently posted a video to X that features FBI Director Christopher Wray attempting to put a gloss on Section 702 as part of this monthslong campaign.

The bureau's timely propaganda did not escape the attention of critics on X, where the post received a community note that read, "The FBI violated American citizens' 4A rights 278,000 times with illegal, unauthorized FISA 702 searches."

Among the critics was Sen. Mike Lee (R-Utah), who wrote, "FBI just got called out in a community note on X. Congress — take note. FISA 702 has been used for warrantless surveillance of U.S. citizens HUNDREDS OF THOUSANDS of times. Yet FBI demands 702 be reauthorized by April 19 WITHOUT a warrant requirement for searches of U.S. citizens."

"Many in Congress will want to reauthorize FISA 702 — which is set to expire April 19th — either without modification or (more likely) with fake reforms that fail to impose a warrant requirement for searches directed at Americans," added the senator.

What is Section 702?

Section 702 is a provision of FISA enacted by Congress in 2008 that enables the state to spy on foreign nationals located outside the U.S. with the compelled aid of electronic communication service providers.

This was the law exploited by the FBI to spy on members of the Trump campaign in 2016 without probable cause.

According to the Office of the Director of National Intelligence, Congress enacted Section 702 in order to "address a collection gap that resulted from the evolution of technology in the years after FISA was passed in 1978."

"Many terrorists and other foreign adversaries were using email accounts serviced by U.S. companies," claimed the ODNI. "Because of this change in communications technology, the government had to seek individual court orders, based on a finding of probable cause, to obtain the communications of non-U.S. persons located abroad."

Supposedly, going through the courts proved too costly "because of the resources required and because the government couldn't always meet the probable cause standard, which was designed to protect U.S. persons and persons in the U.S."

Warrantless spying on Americans

While 702 targets must be foreign nationals believed to be outside the U.S., the FBI readily admits that "such targets may send an email or have a phone call with a U.S. person."

As a consequence, multitudes of American citizens have been subjected to warrantless surveillance and have had their phone calls, text messages, emails, and other communications tapped and stored.

Blaze News previously reported that during a Senate Judiciary Committee hearing in June 2023, the FBI admitted there had been at least 278,000 "unintentional" back-door search queries of the 702 database for the private communications of Americans between 2020 and 2021 alone.

Among those Americans caught up in the warrantless searches were Jan. 6 protesters, 19,000 donors to a congressional campaign, and BLM protesters.

The Hill reported that long after the FBI ran numerous searches of people suspected of partaking in the Jan. 6 protests, the Department of Justice concluded the bureau had not met the standard required for such a search.

Sen. Josh Hawley (R-Mo.) asked FBI Deputy Director Paul Abbate at the June 2023 hearing, "Your institution is the one that, according to the court, the FISA court, ran 278,000 unwarranted — probably illegal — queries on Americans, right? That was your institution, correct?"

Abbate responded, "With respect to the compliance incident, yes."

Reauthorization

Wray sang praises to Section 702 when testifying before the Senate Judiciary Committee in December and did so again before the U.S. Senate Select Committee on Intelligence on March 11.

In his March 11 testimony, Wray stated, "The FISA Court itself most recently found 98% compliance and commented on the reforms working. The most recent Justice Department report found the reforms working, 99% compliance. And so, I think legislation that ensures those reforms stay in place but also preserves the agility and the utility of the tools, what we need to be able to protect the American people."

The FBI's March 25 social post containing an excerpt from Wray's testimony was not well-received.

Rep. Andrew Clyde (R-Ga.) wrote, "The FBI was correctly called out in a community note for lying about its unconstitutional, warrantless surveillance of Americans. Congress must eliminate FISA abuse and protect the American people's privacy."

Georgia Rep. Marjorie Taylor Greene (R) tweeted, "The FBI has been corrected in community notes and rightfully so."

FBI whistlelower Steve Friend reiterated that the FBI "violated constitutional rights and abused FISA Section 702 over 278,000 times in a single year."

Sen. Lee emphasized that he and Illinois Sen. Dick Durbin (D) have introduced a bill that would reauthorize 702 but in a fashion that would supposedly safeguard American privacy and liberties.

Their so-called Security and Freedom Enhancement Act would require intelligence agencies to obtain a FISA Title I order or a warrant prior to accessing the contents of Americans' communications collected under Section 702.

"While only foreigners overseas may be targeted, the program sweeps in massive amounts of Americans' communications, which may be searched without a warrant. Even after implementing compliance measures, the FBI still conducted more than 200,000 warrantless searches of Americans' communications in just one year — more than 500 warrantless searches per day," said Durbin.

Durbin figured this legislation would make reauthorizing Section 702 palatable.

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