High court should hear surveillance case

OCTOBER 2017 TERM

Over the summer, Oregon federal public defenders asked the U.S. Supreme Court to review Mohamud v. United States, a terrorism case that raises fundamental questions about the government’s ability to engage in warrantless surveillance for foreign intelligence purposes. The 9th U.S. Circuit Court of Appeals’ 2016 decision upholding this surveillance departed from Supreme Court precedent and created new exceptions to the Fourth Amendment’s warrant clause. The Supreme Court should grant certiorari to ensure that the NSA’s vast warrantless surveillance of the Internet is not insulated from judicial scrutiny.

Mohamud is also the kind of case the Supreme Court has promised to hear — literally.

The surveillance at issue in the case was conducted under Section 702 of the Foreign Intelligence Surveillance Act, 50 U.S.C. Section 1881a. Section 702 authorizes intelligence agencies to conduct warrantless surveillance of the Internet inside the United States so long as the surveillance is “targeted” at foreigners located abroad. When Section 702 was first passed as part of the FISA Amendments Act of 2008, a group of non-governmental organizations brought a preemptive constitutional challenge because they feared becoming the subjects of this surveillance.

In Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013), the Supreme Court split 5-4 and rejected this challenge on Article III standing grounds. It held that the plaintiffs could not demonstrate that their claimed harm was “certainly impending.” In a footnote, however, the court noted that it was not insulating Section 702 from judicial review because criminal defendants would be notified if they had been subject to such surveillance and could challenge it as part of the criminal proceeding. There was only one problem with that theory: Five years after surveillance had begun under Section 702, no criminal defendants had been informed that the surveillance had been used in their prosecutions.

Just a few months later, the Snowden revelations showed that regardless of whether the Clapper plaintiffs were targets under Section 702, they (like anyone else who uses the internet) in fact had good reason to believe they would be surveilled. That is because the NSA uses Section 702 to collect hundreds of millions of internet communications each year, many (or even most) to or from people inside the United States. We may never know how many U.S. persons are spied on using Section 702, though, because the government has refused to even come up with an estimate.

The confluence of the Clapper footnote and the Snowden disclosures prompted the Department of Justice to correct the record in a handful of criminal cases, including Mohamud. By 2013, Mr. Mohamud had already been convicted of plotting to detonate a dummy car bomb at a 2010 Christmas tree lighting ceremony in Portland. But after conviction (and Snowden), the government informed him that its case was premised in part on Section 702 surveillance.

Many facts remain classified and under seal, but a basic picture has emerged. Mohamud’s father became concerned about his then-teenage son’s activities and asked the FBI to keep an eye on him. Agents then apparently searched the FBI’s vast databases of intercepted communications, looking for any that involved Mohamud. This included searching through communications the FBI had warrantlessly collected under Section 702. They discovered emails between Mohamud and a foreign national already under suspicion. Searching these databases using names or identifiers belong to U.S. citizens is known as a “backdoor search,” and like the initial surveillance, the FBI routinely conducts these searches without a warrant. The fruits of the backdoor search in this case led the FBI to seek a traditional FISA wiretap on Mohamud, culminating with a sting operation around the tree lighting ceremony.

Mohamud’s arguments on appeal were simple. Under United States v. United States District Court, 407 U.S. 297 (1972), Berger v. New York, 388 U.S. 41 (1967), and many other cases, electronic surveillance of this nature requires a warrant. Hence, the government’s warrantless surveillance of Mohamud’s email communications violated the Fourth Amendment. And, even assuming a foreign intelligence exception to the warrant requirement exists — something the Supreme Court has never recognized — Section 702 surveillance is unreasonable based on the “totality of the circumstances” analysis employed in Samson v. California, 547 U.S. 843 (2006). Here, the privacy invasions caused by the NSA’s long-term retention and backdoor search of Americans’ communications far outweigh the legitimate government interests at stake.

The 9th Circuit disagreed, relying on several doctrinally unsupported holdings. First, the court relied on “incidental overhear” cases such as United States v. Kahn, 415 U.S. 143 (1974), reasoning that because the government did not need a warrant to surveil its original target — a foreign national located abroad — it was irrelevant that Mohamud, an American citizen, was swept up in the process. Second, the court analogized to the “third party doctrine” developed in Smith v. Maryland, 442 U.S. 735 (1979), writing that Mohamud’s expectation of privacy in his own emails was “diminished” because he sent them to a third party. Finally, the 9th Circuit dismissed the relevance of backdoor searches, even though the district court below had expressed concerns about their constitutionality.

Each of these holdings presents the sort of question of exceptional importance that favors granting cert, especially in light of the countless Americans affected by Section 702 surveillance. More importantly, each holding is inconsistent with the Supreme Court’s prior Fourth Amendment jurisprudence.

For example, the 9th Circuit’s reliance on the incidental overhear rule from Kahn was entirely misplaced. In Kahn, the Supreme Court held that when the government obtains a valid wiretap order for one target, the incidental interception of others within the scope of the order is not unconstitutional. But Kahn presumes the existence of a valid, particularized warrant; without one, the surveillance is indistinguishable from the uncabined wiretapping statute struck down in Berger. Section 702 surveillance is entirely warrantless; the government is not required to present a court with evidence of probable cause to surveil specific identified targets. Even if the government claims to be targeting someone else who lacks Fourth Amendment rights, it is not entitled to ignore the rights of a U.S. person who is entitled to that protection, including that of the warrant clause.

Perhaps even more garbled is the 9th Circuit’s invocation of the third party doctrine. Cases like Smith involve records of communications, not the actual contents of communications. If someone’s expectation of privacy in her communications were diminished every time she talked to a third party, the Fourth Amendment would not prohibit the warrantless wiretapping, held unconstitutional in Katz v. United States, 389 U.S. 347, or the warrantless interception of letters in transit, rejected as far back as Ex Parte Jackson, 96 U.S. 727, 723 (1877).

Finally, backdoor searches far from irrelevant in this case, given the FBI’s apparent use of its database of warantlessly seized communications to find and read Mohamud’s emails. These searches represent a complete end-run around the warrant requirement and other safeguards that would normally apply to the seizure and search of domestic communications. They cannot be justified under any Fourth Amendment doctrine recognized by the Supreme Court.

If the flaw 9th Circuit decision in Mohamud wasn’t enough reason for the Supreme Court to hear the case, Congress will find room in its overcrowded legislative calendar this fall to debate whether to reauthorize Section 702. The law expires in December, and the director of national intelligence, Dan Coats, and others in the intelligence community have made clear they view its reauthorization as a must-pass. Indeed, they seek to make Section 702 permanent, meaning that Congress will have even few opportunities to conduct oversight into its operation.

It is crucial that the Supreme Court weigh in to protect the fundamental Fourth Amendment interests at stake with Section 702 surveillance. Mohamud may be the best, and perhaps the only, vehicles to do so.