TR Daily Court: U.S. Government Violated FISA With Metadata Collection
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Wednesday, September 2, 2020

Court: U.S. Government Violated FISA With Metadata Collection

The U.S. Court of Appeals for the Ninth Circuit (San Francisco) today concluded that “the government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act (‘FISA’) when it collected the telephony metadata of millions of Americans, including at least one of the defendants” in a case involving convictions for sending money to support a terrorist organization in Somalia.”

Congress allowed the provision of FISA that authorized the National Security Agency’s collection of telephone metadata for mapping out the contacts of foreign intelligence targets to sunset earlier this year (TR Daily, March 11). NSA had suspended the program in 2019 after deciding that the cost of compliance was too high and the program’s value was too low, but the agency had asked Congress to reauthorize the program.

The transfer of money in this case occurred in 2008 and the trial was in 2013.

Circuit Judge Marsha Berzon, writing for the three-judge panel in consolidated cases beginning at “U.S. v. Basaaly Saeed Moalin” (case 13-50572), said the appeal of the conviction in the U.S. District Court for the Southern District of California “raises complex questions regarding the U.S. government’s authority to collect bulk data about its citizens’ activities under the auspices of a foreign intelligence investigation, as well as the rights of criminal defendants when the prosecution uses information derived from foreign intelligence surveillance.”

The appeals court rejected the government’s argument that the third-party doctrine—that an individual has no reasonable expectation of privacy in information they voluntarily convey to a third party, including a telephone company—applies in this case.

“There are strong reasons to doubt that [the 1979 Supreme Court decision in] ‘Smith [v. Maryland’] applies here. Advances in technology since 1979 have enabled the government to collect and analyze information about its citizens on an unprecedented scale. Confronting these changes, and recognizing that a ‘central aim’ of the Fourth Amendment was ‘to place obstacles in the way of a too permeating police surveillance,’ the Supreme Court recently declined to ‘extend’ the third-party doctrine to information whose collection was enabled by new technology,” Judge Berzon wrote, citing the Supreme Court’s 2018 decision in “Carpenter v. U.S.,” which dealt with the use of cellphone historical location data.

She noted the Supreme Court found “a world of difference between the limited types of personal information addressed in ‘Smith’ . . . and the exhaustive chronicle of location information casually collected by wireless carriers today.”

She added, “There is a similar gulf between the facts of ‘Smith’ and the NSA’s long-term collection of telephony metadata from Moalin and millions of other Americans. In ‘Smith,’ a woman was robbed and gave the police a description of the robber and of a car she saw nearby. … After the robbery, the woman received ‘threatening and obscene phone calls from a man identifying himself as the robber.’ Police later spotted a man and car matching the robber’s description and traced the license plate number to Smith. Without obtaining a warrant, they asked the telephone company to install a ‘pen register,’ a device that would record the numbers dialed from Smith’s home telephone. The day the pen register was installed it recorded a call from Smith’s home to the home of the robbery victim. Based on that and other evidence, police obtained a warrant to search Smith’s home and arrested him two days later.”

She continued, “Although the Smith Court perceived a significant distinction between the ‘contents’ of a conversation and the phone number dialed, … in recent years the distinction between content and metadata ‘has become increasingly untenable,’ as Amici point out. … The amount of metadata created and collected has increased exponentially, along with the government’s ability to analyze it.”

“The duration of the collection in this case—and so the amount of information collected—also vastly exceeds that in Smith. While the pen register in Smith was used for a few days at most, here the NSA collected Moalin’s (and millions of other Americans’) telephony metadata on an ongoing, daily basis for years,” Judge Berzon wrote.

“Also problematic is the extremely large number of people from whom the NSA collected telephony metadata, enabling the data to be aggregated and analyzed in bulk,” she said. The court rejected the government’s argument that collection of other people’s data is irrelevant because Fourth Amendment rights “cannot be raised vicariously.”

“But these observations fail to recognize that the collection of millions of other people’s telephony metadata, and the ability to aggregate and analyze it, makes the collection of Moalin’s own metadata considerably more revealing,” Judge Berzon wrote.

As for the metadata program’s compliance with FISA, she said, “[W]e do not accept the government’s justification in this case that ‘the call detail records at issue here—the records that suggested that a particular U.S.-based telephone number may have been associated with a foreign terrorist—were clearly relevant to a counterterrorism investigation.’ … That argument depends on an after-the-fact determination of relevance: once the government had collected a massive amount of call records, it was able to find one that was relevant to a counterterrorism investigation. The problem, of course, is that FISA required the government to make a showing of relevance to a particular authorized investigation before collecting the records.

“We hold that the telephony metadata collection program exceeded the scope of Congress’s authorization in section 1861 and therefore violated that section of FISA,” she said.

Despite the illegal actions of the government, the court held that suppression of the illegally obtained evidence “is not warranted on the facts of this case. Additionally, we confirm that the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. We do not decide whether the government failed to provide any required notice in this case because the lack of such notice did not prejudice the defendants. After considering these issues and several others raised by the defendants, we affirm the convictions in all respects.”

Judge Berzon was joined in the decision by Circuit Judge Jacqueline H. Nguyen and District Judge Jack Zouhary of the Northern District of Ohio, sitting by designation.

Reacting to the court’s decision, Patrick Toomey, senior staff attorney with the ACLU’s National Security Project, said, “Today's ruling is a victory for our privacy rights. The ruling makes plain that the NSA’s bulk collection of Americans' phone records violated the Constitution. The decision also recognizes that when the government seeks to prosecute a person, it must give notice of the secret surveillance it used to gather its evidence. This protection is a vital one given the proliferation of novel spying tools the government uses today.

Mr. Toomey added, “We are disappointed that, having found the surveillance of Mr. Moalin unlawful, the court declined to order suppression of the illegally obtained evidence in his case. His defense team is evaluating the options for further appeal.”

The ACLU was co-counsel to the defendant-appellants on the case. —Lynn Stanton, [email protected]

MainStory: FederalNews Courts Cybersecurity

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