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United States v. Hasbajrami

United States Court of Appeals, Second Circuit

December 18, 2019

AGRON HASBAJRAMI, Defendant-Appellant.

          Argued: August 27, 2018

         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 fruits of the Section 702 surveillance. The district court (Gleeson, then-J.) denied the motion to suppress and Hasbajrami again pleaded guilty, this time pursuant to a conditional guilty 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. [XXXXXX] 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. Dratel, Joshua L. Dratel, P.C., New York, NY, and Steve Zissou, Steve Zissou & Associates, Bayside, NY, for Defendant-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 Slates District Attorney for the Eastern District of New York, Brooklyn, NY, for the United States of America.

          Patrick TOOMEY and Ashley Gorski, American Civil Liberties Foundation, New York, NY, Mark Rumold and Andrew Crocker, Electronic Frontier Foundation, San Francisco, CA, Amid Curiae American Civil Liberties Union and Electronic Frontier Foundation.

          Before: LYNCH, CARNEY, and DRONEY, Circuit Judges.


         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 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. Following the disclosure of Section 702 surveillance, the district court (John 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. as well as any fruits of that surveillance, including the evidence obtained pursuant to FISA warrants and inculpatory 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. [XXXXX] [1]

         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 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 purpose, 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.


         This appeal concerns the legal status of evidence of Hasbajrami's electronic communications with individuals located abroad, which was collected by the 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, 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 about to board a flight to Istanbul, 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, 2011, 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 [FISA]." See Notice of Intent to Use Foreign Intelligence Surveillance Act Information, United States v. Hasbajrami, 1:11-cr-623 (E.D.N.Y. filed Sept 13, 2011), ECF No. 9.

         In discovery, Hasbajrami was provided with evidence of his communications obtained pursuant to traditional FISA warrants, [2] and he eventually pleaded guilty on April 12, 2012, to one count of providing material support to terrorists. He was sentenced to 180 months' imprisonment.

         B. Disclosure of Section 702 Surveillance, Withdrawal of Flea, and Motion to Suppress

         After Hasbajrami's initial plea and sentencing, and while Hasbajrami was serving his sentence, the government disclosed that it had collected 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 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 knowing 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.

         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, 1:11-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 FISA collection ... [that was] itself also derived from other collection pursuant to Title VU" 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.


         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.

         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 variety 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 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). Hasbajrami'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 electronic surveillance, physical searches, "pen/trap" surveillance, 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/ and 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 ("FISC") 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.

         Traditional FISA had some limitations, however. Because each application required a court order, which in turn required probable cause, the government believed "that, after September 11, 2001, [FISA's] requirements unduly restrict[ed 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 FBA, 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 surveillance in the U.S. of stored e-mail messages exchanged between two parries 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 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)(1)(A).

         Section 702 differs from traditional F1SA 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 F1SA 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 statutory 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." 50 U.S.C. § 1881a(b)(2).

         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 the time of the acquisition to be located in the United States'' 50 U.S.C. § 1881a(d)(1). Targeting procedures are also subject to the limitations related to targeting United States persons outlined above. 50 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 *5 (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 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 FCLOB 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 FCLOB, 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 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 m 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 and review of such material happens roughly in real time, or close to real time. In other words, the 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.

         One key difference between PRISM and upstream collection is that PRISM collects individual communications, while upstream collects whole "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 communication (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 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 ...

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