"Foreign reconnaissance" in Germany: FBI surveillance practice unconstitutional

In the USA, a district court has ruled that the FBI violated the constitution by searching people's emails in the USA without a warrant. This is the result of a ruling handed down in New York in December, which has now been made public. Critics of the FBI's actions, such as the civil rights organization EFF, speak of a "VICTORY!" and see themselves vindicated after years of legal battles. In the underlying individual case, however, the procedure has no consequences for the evidence collected in this way because the responsible FBI agents "objectively understandably" had the good-faith assumption that their actions were lawful.

Via the detour to communications from within Germany

Based on a specific case, the proceedings concerned a practice of the US Federal Police that has been controversial for years. On the basis of Section 702 of the Foreign Intelligence Surveillance Act (FISA), the police searched collected online communications, even if not all participants were from abroad. No judicial approval was obtained. People in the USA are actually protected from such searches by the 4th Amendment to the US Constitution – but this protection does not apply to foreign countries. Millions of private messages from people in the USA are searched every year, even though the underlying law is actually designed for purely foreign communications.

As the EFF summarizes, the case involves an Albanian who was arrested at JFK airport in New York in 2011 before a flight to Pakistan. He was accused of trying to support terrorist activities there, and the prosecution relied on messages without telling the defense how they had obtained them. It was only after the revelations by Edward Snowden that defendants like him learned about the – now classified as unlawful – way in which the US government had monitored them. The Albanian was sentenced to 16 years in prison nine and a half years ago and, despite his legal success, the unlawfully obtained evidence does not have to be excluded from his trial.

The controversial Section 702 of FISA was only extended for another two years less than a year ago by large majorities in both chambers of the US Congress. On the same day, the Deputy Director of the FBI called on agents to continue spying on US citizens and people in the USA without a warrant on the basis of this article in the Foreign Intelligence Surveillance Act. The EFF later sharply criticized this and now feels vindicated. The organization has now called on Congress to approve a further extension only after fundamental changes have been made. In addition, the FBI must now obtain a warrant from a judge in order to search for domestic data.

(mho)