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It's official: The FBI's warrantless searches of communications seized to protect US national security have at last been ruled unconstitutional and in violation of the Fourth Amendment.
In a major December
ruling made public this week, US District Judge LaShann DeArcy Hall settled one of the biggest debates about feared government overreach that has prompted calls to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA) for more than a decade.
Critics' primary concern was whether the FBI needed a warrant to search and query Americans' communications that are often incidentally, inadvertently, or mistakenly seized during investigations of suspected foreign terrorists.
The Electronic Frontier Foundation (EFF), a digital rights group that has long said a warrant is needed to conduct such invasive searches,
celebrated the ruling as "better late than never." The EFF noted that
the FBI conducted 3.4 million warrantless searches of US persons' 702 data in 2021, describing it as a "routine practice" and calling out Section 702 as a "finders keepers" rule that for years has seemingly given feds' unfettered access to many Americans' private and sensitive communication data.DeArcy Hall agreed with an appeals court that ruled that
"the government cannot circumvent application of the warrant requirement simply because queried information is already collected and held by the government," as the US unsuccessfully tried to argue.
"To hold otherwise would effectively allow law enforcement to amass a repository of communications under Section 702, including those of US persons that can later be searched on demand without limitation," DeArcy Hall wrote. "While communications of US persons may nonetheless be intercepted, incidentally or inadvertently, it would be paradoxical to permit warrantless searches of the same information that Section 702 is specifically designed to avoid collecting," she said. And likely equally important,
"public interest alone does not justify warrantless querying," she said.
But she declined to issue harsh sanctions and denied a request to suppress evidence in the case — which involved a permanent US resident, Agron Hasbajrami, who was arrested in 2011 partly based on FBI queries of 702 data, for providing material support to a terrorist organization. According to DeArcy Hall, the government conducted these searches in "good faith" and "objectively" believed "those queries did not require a warrant."
Comment: Perhaps there wouldn't be so much animosity towards the Jewish people if these survivors had done something to protest the Israeli treatment of Palestinians, the Mossad's involvement in global terror, and the rise of actual neo-Nazism in Ukraine.