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Better late than never: last night a federal district court held that backdoor searches of databases full of Americans’ private communications collected under Section 702 ordinarily require a warrant. The landmark ruling comes in a criminal case, United States v. Hasbajrami, after more than a decade of litigation, and over four years since the Second Circuit Court of Appeals found that backdoor searches constitute “separate Fourth Amendment events” and directed the district court to determine a warrant was required. Now, that has been officially decreed.

In the intervening years, Congress has reauthorized Section 702 multiple times, each time ignoring overwhelming evidence that the FBI and the intelligence community abuse their access to databases of warrantlessly collected messages and other data. The Foreign Intelligence Surveillance Court (FISC), which Congress assigned with the primary role of judicial oversight of Section 702, has also repeatedly dismissed arguments that the backdoor searches violate the Fourth Amendment, giving the intelligence community endless do-overs despite its repeated transgressions of even lax safeguards on these searches.

This decision sheds light on the government’s liberal use of what is essential a “finders keepers” rule regarding your communication data. As a legal authority, FISA Section 702 allows the intelligence community to collect a massive amount of communications data from overseas in the name of “national security.” But, in cases where one side of that conversation is a person on US soil, that data is still collected and retained in large databases searchable by federal law enforcement. Because the US-side of these communications is already collected and just sitting there, the government has claimed that law enforcement agencies do not need a warrant to sift through them. EFF argued for over a decade that this is unconstitutional, and now a federal court agrees with us.

EFF argued for over a decade that this is unconstitutional, and now a federal court agrees with us.

Hasbajrami involves a U.S. resident who was arrested at New York JFK airport in 2011 on his way to Pakistan and charged with providing material support to terrorists. Only after his original conviction did the government explain that its case was premised in part on emails between Mr. Hasbajrami and an unnamed foreigner associated with terrorist groups, emails collected warrantless using Section 702 programs, placed in a database, then searched, again without a warrant, using terms related to Mr. Hasbajrami himself.

The district court found that regardless of whether the government can lawfully warrantlessly collect communications between foreigners and Americans using Section 702, it cannot ordinarily rely on a “foreign intelligence exception” to the Fourth Amendment’s warrant clause when searching these communications, as is the FBI’s routine practice. And, even if such an exception did apply, the court found that the intrusion on privacy caused by reading our most sensitive communications rendered these searches “unreasonable” under the meaning of the Fourth Amendment. In 2021 alone, the FBI conducted 3.4 million warrantless searches of US person’s 702 data.

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 US persons data and increased transparency. On April 15, 2026, Section 702 is set to expire. 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. More immediately, the FISC should amend its rules for backdoor searches and require the FBI to seek a warrant before conducting them.

Related Cases: United States v. Hasbajrami

Andrew Crocker

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Protecting “Free Speech” Can’t Just Be About Targeting Political Opponents

EFF update

2 months 1 week ago

The White House executive order “restoring freedom of speech and ending federal censorship,” published Monday, misses the mark on truly protecting Americans’ First Amendment rights.

The order calls for an investigation of efforts under the Biden administration to “moderate, deplatform, or otherwise suppress speech,” especially on social media companies. It goes on to order an Attorney General investigation of any government activities “over the last 4 years” that are inconsistent with the First Amendment. The order states in part:

Under the guise of combatting “misinformation,” “disinformation,” and “malinformation,” the Federal Government infringed on the constitutionally protected speech rights of American citizens across the United States in a manner that advanced the Government’s preferred narrative about significant matters of public debate.

But noticeably absent from the Executive Order is any commitment to government transparency. In the Santa Clara Principles, a guideline for online content moderation authored by EFF and other civil society groups, we state that “governments and other state actors should themselves report their involvement in content moderation decisions, including data on demands or requests for content to be actioned or an account suspended, broken down by the legal basis for the request." This Executive Order doesn’t come close to embracing such a principle.

The order is also misguided in its time-limited targeting. Informal government efforts to persuade, cajole, or strong-arm private media platforms, also called “jawboning,” have been an aspect of every U.S. government since at least 2011. Any good-faith inquiry into such pressures would not be limited to a single administration. It’s misleading to suggest the previous administration was the only, or even the primary, source of such pressures. This time limit reeks of political vindictiveness, not a true effort to limit improper government actions.

To be clear, a look back at past government involvement in online content moderation is a good thing. But an honest inquiry would not be time-limited to the actions of a political opponent, nor limited to only past actions. The public would also be better served by a report that had a clear deadline, and a requirement that the results be made public, rather than sent only to the President’s office. Finally, the investigation would be better placed with an inspector general, not the U.S. Attorney General, which implies possible prosecutions.

As we have written before, the First Amendment forbids the government from coercing private entities to censor speech. This principle has countered efforts to pressure intermediaries like bookstores and credit card processors to limit others’ speech. But not every communication about user speech is unconstitutional; some are beneficial, like when platforms reach out to government agencies as authoritative sources of information.

For anyone who may have been excited to see a first-day executive order truly focused on free expression, President Trump’s Jan. 20 order is a disappointment, at best.

Joe Mullin