E.D.N.Y.: A brief explanation of how FISA surveillance works and why this was constitutional

Defendant pled to attempting to provide material support to a terrorist organization by flying from JFK to Turkey to Pakistan. His emails overseas were captured by FISA and led to his prosecution. After the plea he filed a 2255 to reopen the constitutional question of the interceptions, which is denied. The surveillance complied with the Fourth Amendment. United States v. Hasbajrami, 2016 U.S. Dist. LEXIS 30613 (E.D.N.Y. Feb. 18, 2016, filed Mar. 8, 2016):

There are two types of Section 702 collection: PRISM and Upstream. See PCLOB Report at 7, 33. ln PRISM collection, the government identifies the user accounts it wants to monitor and sends a “selector”—a specific communications facility, such as a target’s email address or telephone number—to the relevant communications service provider. Id. at 32-33. A government directive then compels the communications service provider to give it communications sent to or from that selector (i.e., the government “tasks” the selector).11 Id. at 33; 50 U.S.C. § 1881a(h). This type of surveillance, which intercepts “to/from” communications, can result in the interception of communications with U.S. persons if the target happens to communicate with such a person. See PCLOB Report at 33.

Upstream collection, on the other hand, involves the acquisition of communications through the compelled assistance of the providers that control the telecommunications backbone within the United States over which communications travel. Id. at 35. Like PRISM, upstream collection intercepts “to/from” communications. Id. at 37. But upstream collection is less tailored than PRISM collection; it allows the government to additionally intercept “about” communications, that is, communications that refer to, or are “about,” a particular selector. Id. For example, an email in the body of which a targeted email address appears is an “about” communication, even though the targeted person is not necessarily a participant in the intercepted communication. Id. If a communication is to, from, or about a tasked selector, the NSA can acquire an entire MCT, which may contain more than one discrete communication. Id. at 39-41. Simply put, the government can collect other discrete communications that do not have anything to do with the tasked selector, which can result in the collection and querying of wholly domestic communications of non-targeted persons. Id. at 7; NSA Report at 5-6. Some have argued that the FISC erred in its approval in 2011 of “about” communications collection, instead of limiting Section 702 surveillance to communications intercepted by “to/from” collection. See, e.g., Donohue at 159; First Amended Complaint, Wikimedia Found. v. NSA, 15-CV-00662, ¶ 50 (D. Md. June 19, 2015) (equating upstream collection with allowing “a government agent [to] open every piece of mail that comes through the post to determine whether it mentions a particular word or phrase”).

The government conducted the disputed surveillance in this case under the PRISM program. Gov’t Cl. Br. at 54. None of the Section 702 communications used in the Title I and Title II FISA applications targeting the agent of a foreign power were “about” communications. Id. Thus, the constitutionality of upstream collection is not at issue here.

Headings of the opinion:

B. The Constitutionality of Section 702 is Limited to an As Applied Challenge

C. Warrantless Surveillance Pursuant to Section 702 is Lawful Under the Fourth Amendment When It Targets Non-US. Persons Abroad

1. The Fourth Amendment Does Not Apply to Foreign Persons Abroad

2. The Incidental Collection of U.S. Persons’ Communications with Lawfully Targeted Non-US. Persons Abroad Does Not Trigger the Warrant Requirement

3. PRISM Collection is Reasonable Under the Fourth Amendment

a. The Government Has a Compelling Interest in Obtaining Foreign Intelligence Information to Protect National Security

b. Individuals Have a Diminished Expectation of Privacy in Email Communications with Non-U.S. Persons Outside the United States

c. Section 702’s Safeguards and Procedures Sufficiently Protect Non-Targeted US. Persons’ Privacy Interests

D. The Traditional FISA Information Was Lawfully Acquired Because It Was Obtained Pursuant to a Warrant Based on Probable Cause