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Dec. 6 — E-mail surveillance used to convict a Somali-American for attempting to bomb a Portland, Ore., Christmas tree lighting ceremony was proper, the U.S. Court of Appeals for the Ninth Circuit held Dec. 5 ( United States v. Mohamud, 2016 BL 403173, 9th Cir., No. 14-30217, 12/5/16 ).
“I would guess that this opinion will be influential in persuading other circuit courts” that Section 702 of the 1978 Foreign Intelligence Surveillance Act, under which the defendant’s e-mails were collected, “is not unconstitutional,” Tung Yin, a professor at Lewis & Clark Law School, Portland, Ore., told Bloomberg BNA by e-mail Dec. 6.
Acquisition of Mohamed Osman Mohamud’s e-mails under FISA didn’t violate the Fourth Amendment’s protections against unreasonable searches and seizures, the court held in a decision by Judge John B. Owens.
That’s because the e-mails were “incidentally collected” during the Federal Bureau of Investigation’s surveillance of a foreign national, the court found.
The Ninth Circuit’s ruling is notable because it “leaves open the possibility of future challenges” to Section 702 “and expresses concerns about various aspects of the programs,” Jennifer Daskal, a professor at American University law school, Washington, told Bloomberg BNA by e-mail Dec. 6.
The ruling affirmed the district court. That court was the “first ever court to address the constitutionality of section 702,” Daskal wrote in a 2015 blog post for the “Just Security” national security blog.
FISA allows the federal government to conduct electronic surveillance targeting communications of non-U.S. persons who are abroad, with authorization from the Foreign Intelligence Surveillance Court, the appeals court said.
FISA’s goal “was to allow the federal government a degree of freedom in engaging in surveillance of purely foreign targets, while setting up a warrant system” in cases where Americans would be targeted, Yin said.
Section 702 was added to FISA in 2008. Unlike “‘traditional FISA,’” it doesn’t require the government to show probable cause that the surveillance target is a foreign power or an agent of one, the court said.
Rather, Section 702 requires the government to gain the FISC’s approval of its targeting procedures and procedures to minimize acquisition of nonpublicly available information about non-consenting Americans.
Here, through “the monitoring of a foreign national’s email account” under Section 702, the federal government “learned that Mohamud was in contact with that foreign national, who was located overseas,” the court said.
That contact “was used to obtain a FISA warrant to surveil Mohamud.”
“Confined to the particular facts of this case,” the incidental collection of Mohamud’s e-mails didn’t violate the Fourth Amendment, the court found.
The court held that this type of “search” didn’t require a warrant under the Fourth Amendment because it “was targeted at a non-U.S. person with no Fourth Amendment right.”
The Fourth Amendment doesn’t apply to searches and seizures against non-resident aliens abroad, the court said.
Further, the court found that Mohamud’s privacy interest in his e-mails was reduced under the “‘third-party’ doctrine—that a person’s privacy interest is diminished where he or she reveals information to a third party, even in confidence.”
The ruling could increase the amount of e-mail surveillance conducted by the government, Yin, who teaches about national security law, said.
The national security significance of the ruling “probably isn’t so much in altering the direction of how the government will use FISA but rather in the pace,” he said.
By “giving in effect the green light to what the government has been doing” under Section 702, “the Ninth Circuit has perhaps unshackled FBI intelligence analysts, etc.,” he said.
The fact that the pro-surveillance ruling came from the Ninth Circuit “is also notable, in that the Ninth Circuit still has a reputation of being a ‘liberal’ court,” Yin said.
Yin noted that Judge Harry Pregerson, who joined the opinion, “has been considered one of the most liberal judges on the Ninth Circuit for decades.”
The “fact that Judge Pregerson didn’t dissent should suggest that it was an easy case,” Yin said.
Despite upholding the collection of e-mails here, the court expressed concern about government surveillance under Section 702, Daskal, whose research focuses include national security law, noted.
It’s significant that the Ninth Circuit “described the volume of anticipated, incidental collection” of information concerning U.S. citizens and residents who have Fourth Amendment rights, as “troubling,” Daskal said.
Further, the court “described the internal oversight over the targeting and minimization procedures"—which govern how information about U.S. citizens is retained and disseminated—as not being a “robust safeguard,” she said.
“And it explicitly left open future challenges in situations when the FBI is querying a 702 database to look for information about a U.S. citizen or resident,” Daskal said.
The decision raises questions with its finding of a reduced privacy interest “in communications sent to and received by a foreigner” outside the U.S., Daskal said.
“How far does that extend? To the collection of that information? To subsequent dissemination, querying, and retention?” she asked.
Daskal said the idea that U.S. “citizens lose their privacy interests in an email that is communicated with a foreign friend or business partner is disturbing.”
Congress should take up these issues, she said.
It “should insist that before the FBI can search” Section 702 databases for information about U.S. persons, “it should at least have to establish a specific, articulable basis for doing so and the general reasonableness of the search,” Daskal said.
The Ninth Circuit also rejected Mohamud’s argument that he was entrapped by law enforcement.
Mohamud demonstrated a “complete lack of reluctance” to carry out the bombing, with which FBI agents pretended to assist as part of an undercover operation.
Mohamud immigrated from Somalia “at the age of three” and was “like any other American teenager” in many respects, the court said.
We “will never know if Mohamud—a young man with promise—would have carried out a mass attack,” the court said.
But other promising young people have taken “the next step, leading to horrific consequences,” the court said.
Judge Carlos T. Bea joined the decision.
The Federal Public Defender’s Office argued for Mohamud.
The U.S. Attorney’s Office argued for the federal government.
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