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A federal court will be scrutinizing one of the National Security Agency’s worst spying
programs on Monday. The case has the potential to restore crucial privacy protections for the
millions of Americans who use the internet to communicate with family, friends, and others
overseas.
The unconstitutional surveillance program at issue is called PRISM, under which the NSA, FBI,
and CIA gather and search through Americans’ international emails, internet calls, and chats
without obtaining a warrant. When Edward Snowden blew the whistle on PRISM in 2013, the
program included at least nine major internet companies, including Facebook, Google, Apple,
and Skype. Today, it very likely includes an even broader set of companies.
The government insists that it uses this program to target foreigners, but that’s only half the
picture: In reality, it uses PRISM as a backdoor into Americans’ private communications,
violating the Fourth Amendment on a massive scale. We don’t know the total number of
Americans affected, even today, because the government has refused to provide any estimate.
This type of unjustifiable secrecy has also helped the program evade public judicial review of its
legality because the government almost never tells people that it spied on them without a
warrant. Indeed, the government has a track record of failing to tell Americans about this spying
even when the person is charged with a crime based on the surveillance. That’s one reason why
this case is so important — this time, the government has admitted to the spying.
In this case, the government accused a Brooklyn man, Agron Hasbajrami, of attempting to
provide material support to a designated terrorist organization in Pakistan. After he pleaded
guilty to one of the charges, the government belatedly admitted that it had read through his
emails without a warrant.
Now Mr. Hasbajrami has challenged the government’s warrantless surveillance and is asking the
Second Circuit Court of Appeals to throw out the resulting evidence. The American Civil
Liberties Union and the Electronic Frontier Foundation are supporting him as
friends-of-the-court, arguing that the surveillance was unconstitutional (the brief we filed is
here). At the hearing on Monday, we’ll explain to a three-judge panel why the Fourth
Amendment requires the government to get a warrant when it wants to exploit the
communications of Americans who are swept up in PRISM.

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