CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Tuesday, April 13, 2021

Machtiger on Incidental Collection under FISA

Peter Machtiger has posted Updating the Fourth Amendment Analysis of U.S. Person Communications Incidentally Collected Under FISA Section 702 (Harvard National Security Journal Online 2021) on SSRN. Here is the abstract:
In 2019, the Second Circuit published its opinion in United States v. Hasbajrami, a case about the use of U.S. person communications incidentally collected as part of FISA Section 702 surveillance. The court concluded that this incidental collection and its use in the prosecution of Hasbajrami was lawful under the Fourth Amendment because it was not subject to the warrant requirement and the collection was reasonable. This piece provides an alternative analysis of incidental collection under Section 702 using the underlying principles advanced by the Supreme Court in Carpenter v. United States. After looking at some issues with the Second Circuit panel’s analysis, this piece suggests that requiring a warrant for law enforcement to access the contents of incidentally collected U.S. person communications for the purposes of criminal investigation would provide a framework more compatible with the Fourth Amendment.

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