The Ninth Circuit Court of Appeals on Monday ruled against a constitutional plea made by Mohamed Osman Mohamud — a Somali-American who attempted as a teenager to detonate a fake car bomb supplied by undercover FBI agents during a Christmas tree lighting ceremony in Portland, Oregon, in 2010.
Since his conviction in January 2013, Mohamud has been fighting in court to challenge the government’s warrantless collection of his emails sent overseas. With support from the American Civil Liberties Union as an amicus, he contended that the Fourth Amendment should have protected his emails.
However, the panel of three Circuit judges disagreed — deciding that the government has the right under Section 702 of the Foreign Intelligence Surveillance Act to make use of American digital communications it obtains incidentally through its overseas surveillance programs, so long as the original target is a foreigner. Mohamud had “diminished” expectations of privacy when he hit send, knowing his correspondence would leave the country, the court said.
Under Section 702, the government doesn’t need to obtain a warrant, demonstrate probable cause, or be specific about exactly where and when the surveillance will take place. If the government can use communications from Americans collected under 702, even in narrow circumstances, it sets a precedent that could have lasting implications for their constitutional right to privacy in the digital age.
The court, however, did not believe that Mohamud’s case represented a threat to privacy. “Although [Section] 702 potentially raises complex statutory and constitutional issues, this case does not,” wrote Judge John Owens in the Court’s opinion.
Mohamud was not a target of the overseas surveillance, and the government did not “query” its database of collected communications specifically for his emails, the judge continued. “All this case involved was the targeting of a foreign national under [Section] 702, through which Mohamud’s email communications were incidentally collected.”
The government collected Mohamud’s communications because he was emailing someone it was legally monitoring — then went back and got a targeted warrant to surveil his communications.
According to the American Civil Liberties Union, that argument is circular — you can’t presume a particular instance of surveillance is legal automatically, especially when reading emails belonging to Americans. The court “said that a warrant is not required where the surveillance is ‘lawful,’ but that simply assumes the conclusion,” wrote Patrick Toomey, a staff attorney at the ACLU’s National Security Project who argued as an amici in the case, in an email to The Intercept.
“The very question is whether it is lawful for the government to engage in warrantless surveillance of Americans, on a vast scale, just because its targets are foreigners. The Fourth Amendment does not permit the government to dispense with the privacy rights of Americans so easily,” he continued.
According to Orin Kerr, law professor at George Washington University Law School, the idea that the government only intended to spy on a foreign national, excusing it from monitoring an American at the other end, makes little legal sense. “Section 702 draws a statutory distinction between ‘targeting’ someone and merely incidentally collecting that person’s communications. But how is that a constitutional distinction?” he asked in a column for the Washington Post.
According to the court, “whether there is a warrant requirement for monitoring hinges on the subjective question of who the government intends as its ‘target,’” he wrote. “I’m not sure what to make of this.”
But the Ninth Circuit’s decision isn’t entirely surprising; it reaffirms a previous conclusion by the U.S. District Court for the District of Oregon in the summer of 2014.
And the government has repeatedly made similar arguments in defense of a practice that critics argue goes even further against Americans’ Fourth-Amendment protections — so called “backdoor searches” of foreign surveillance databases conducted by the FBI during criminal investigations.
The government has repeatedly argued that it is acceptable to search a database of communications collected solely for the purpose of foreign intelligence gathering — even if the search is done for other purposes — because the data was gathered legally in the first place.
In Mohamud’s case, the court said backdoor searches were not at issue, because the FBI did not specifically go hunting for Mohamud’s emails. Yet Toomey believes this distinction is meaningless.
“The government is using this surveillance to sweep up Americans’ emails without a warrant, amassing them in FBI and NSA databases for years at a time, and then searching through them in ordinary criminal investigations,” says Toomey. “That’s the very kind of warrantless intrusion the Fourth Amendment was intended to prohibit.”