United States v. Hasbajrami

United States v. Hasbajrami is a federal prosecution in the Eastern District of New York that has, over more than a decade of constitutional litigation, produced the two most significant judicial rulings on whether "backdoor searches" of Section 702 databases require a Fourth Amendment warrant. The case is the principal litigation vehicle through which the American Civil Liberties Union's ACLU National Security Project has pressed the warrant requirement argument, and the January 2025 district court ruling in the case was the first federal ruling to impose a warrant requirement on warrantless U.S. person queries of Foreign Intelligence Surveillance Act Section 702 data.

The Prosecution

Agron Hasbajrami, a lawful permanent resident of the United States, was arrested on September 6, 2011, attempting to board a flight from JFK Airport to Turkey en route to Pakistan. He was charged with attempting to provide material support to a foreign terrorist organization. He pleaded guilty in 2012 and was sentenced to 180 months in federal prison.

FISA Disclosure and Litigation Origins

While Hasbajrami was serving his sentence, prosecutors disclosed that some evidence they would have introduced at trial was acquired through FISA orders predicated on information the government collected under Section 702, and later retrieved through queries of the collected data. The disclosure triggered a legal challenge: Hasbajrami argued that the use of this material, and specifically the querying of Section 702 databases using his U.S. person identifier, violated the Fourth Amendment's prohibition on unreasonable searches without a warrant.

Second Circuit, 2019

On December 18, 2019, the U.S. Court of Appeals for the Second Circuit issued its decision in United States v. Hasbajrami, 945 F.3d 641. Judge Gerard Lynch, writing for a unanimous panel, ruled that Section 702 collection of the communications of a U.S. person's foreign contacts was permissible as incidental collection. However, the court also held that querying the resulting databases using a U.S. person identifier constitutes a "separate Fourth Amendment event" from the initial collection, and must independently comport with the Fourth Amendment. The Second Circuit remanded to the district court to determine whether a warrant was required for the specific queries at issue.¹

The ruling rejected the government's argument that the "foreign intelligence exception" to the Fourth Amendment's warrant requirement justified warrantless U.S. person queries of Section 702 databases. The court declined to find a categorical exemption, requiring instead a case-specific Fourth Amendment analysis.

District Court Ruling, January 2025

Following the Second Circuit remand, the district court conducted an in camera review and eventually issued its ruling in declassified form on January 21, 2025. The court held that warrantless queries of Section 702 databases using U.S. person identifiers violated the Fourth Amendment and required a warrant. The decision was the first federal ruling to impose this requirement. The court rejected the government's argument that the "foreign intelligence exception" could justify warrantless querying of data already in government databases, and found that the querying constituted a Fourth Amendment search requiring a warrant absent exigent circumstances or another recognized exception.²

The ACLU, through senior staff attorney Ashley Gorski, characterized the ruling as a significant victory: "For more than a decade, the government has argued that it should be able to warrantlessly search through a database containing Americans' private communications, just because the government called it a 'foreign intelligence' database. Today's ruling rejects that position."

The Russell Challenge and Fourth Circuit Gap

The Hasbajrami framework was directly relevant to the Section 702 challenge raised in United States v. Russell, 1:23-cr-00029 (D. Md.). Russell's defense team, joined by the ACLU, argued that Section 702 backdoor searches had initiated the investigation. Senior U.S. District Judge James K. Bredar's August 2024 ruling in that case resolved only whether Section 702 evidence would be used at trial, not whether Section 702 collection had occurred at an investigative stage, leaving the Hasbajrami framework's application to domestic extremism cases unresolved.³

The Hasbajrami district court's January 2025 ruling, issued after Bredar's August 2024 order but before Russell's February 2025 conviction, did not constitute binding precedent in the Fourth Circuit, which encompasses the District of Maryland. No Fourth Circuit decision on the warrant requirement for Section 702 queries had issued as of mid-2026.