In United States v. Moalin, --- F.3d ---, No. 13-50572 (9th Cir. 2020), the Court affirmed the convictions of four members of the Somali diaspora for sending, or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization.
This case was argued in November 2016! It addresses 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.
"We conclude 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, but suppression 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."
On appeal, the defendants argued, "that the metadata collection violated his Fourth Amendment 'right . . . to be secure . . . against unreasonable searches and seizures.'"
The Court agreed the collection of vast amounts of metadata raised serious concerns: "The amount of
metadata created and collected has increased exponentially,
along with the government’s ability to analyze it. 'Records
that once would have revealed a few scattered tiles of
information about a person now reveal an entire mosaic—a
vibrant and constantly updating picture of the person’s life.' According to the NSA’s former general counsel Stewart
Baker, '[m]etadata absolutely tells you everything about
somebody’s life. . . . If you have enough metadata you don’t
really need content . . . .”
The Court thus found "defendants’ Fourth Amendment argument has considerable force." But it did "not come to rest as to whether the discontinued metadata program violated the Fourth Amendment because even if it did, suppression would not be warranted on the facts of this case."
"Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial."
The Court then turned to the defendant's argument that the metadata collection program violated FISA Subchapter IV, under which the FISA Court authorized it.
First, the Court rejected the government's lack of standing argument with helpful language: "As our cases have explained, 'Fourth amendment standing is quite different . . . from ‘case or controversy’ determinations of article III standing.' Whereas Article III standing concerns our jurisdiction, Fourth Amendment standing 'is a matter of substantive fourth amendment law; to say that a party lacks fourth amendment standing is to say that his reasonable expectation of privacy has not been infringed.''
"We reject the government’s invitation to dispense with defendants’ statutory argument on the basis of Fourth Amendment standing. First, as Carpenter clarified after this case was briefed, there is no categorical rule preventing criminal defendants from challenging third-party subpoenas. Carpenter, 138 S. Ct. at 2221. Second, as discussed above, Moalin likely had a reasonable expectation of privacy in his telephony metadata—at the very least, it is a close question. Finally, and most importantly, defendants’ statutory and Fourth Amendment arguments rest on independent legal grounds, and we see no reason why Moalin’s 'standing' to pursue the statutory challenge should turn on the merits of the Fourth Amendment issue. We therefore proceed to the merits of the statutory challenge."
As to the merits, the Court further held "the telephony metadata collection program exceeded the scope of Congress’s authorization in section 1861 and therefore violated that section of FISA."
But it rejected the argument that suppression was required for the statutory violation. "Even if we were to apply a 'fruit of the poisonous tree' analysis, we would conclude, based on our careful review of the classified FISA applications and related information, that the FISA wiretap evidence was not the fruit of the unlawful metadata collection. Again, if the statements of public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record."
Next, the Court considered the defendants' argument "that the Fourth Amendment required the government to provide notice to defendants of its collection and use of Moalin’s telephony metadata. They also contend that they were entitled to notice of any additional surveillance, other than FISA Subchapter I surveillance, that the government conducted of them during the course of its investigation."
"The government did not notify defendants that it had collected Moalin’s phone records as part of the metadata program. Defendants learned that after trial—from the public statements that government officials made in the wake of the Snowden disclosures. See supra pp. 13–14. Nor did the government provide notice of any additional surveillance, apart from FISA Subchapter I surveillance, it had conducted of defendants."
"The Fourth Amendment requires that a person subject to a government search receive notice of the search, absent 'exigent circumstances.'"
"[B]ecause the Fourth Amendment applies to foreign intelligence investigations, U.S. criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence surveillance may have Fourth Amendment rights to protect. The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the 'fruits' of that evidence—additional evidence to which it led. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression."
"Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are."
"At a minimum, then, 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 emphasize that notice is distinct from disclosure. Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality."
However, "assuming without deciding that the government should have provided notice of the metadata collection to defendants, the government’s failure to do so did not prejudice defendants. Defendants learned of the metadata collection, albeit in an unusual way, in time to challenge the legality of the program in their motion for a new trial and on appeal."
The Court also rejected the defendants' Brady claims and arguments as to evidentiary errors during trial.
