United States v. Moalin, et al., No. 13-50572 (9th Cir.)
In the wake of the D.C. Circuit’s stay of the injunction in Klayman v. Obama, this criminal case is very arguably the only vehicle for challenging the NSA’s bulk telephony metadata program. See Michael Price, “The Legal Legacy of the NSA’s Section 215 Bulk Collection Program,” Just Security, Nov. 16, 2015.
On November 5, 2015, the defendants filed a 288 page opening brief arguing that their convictions should be reversed because the principal evidence against them was obtained through the NSA’s bulk telephony metadata program. The brief urged that the program was not authorized by statute and violated the First and Fourth Amendments.
On the same date, a joint amicus brief was filed by the Brennan Center for Justice, Electronic Privacy Information Center, National Association of Criminal Defense Lawyers, American Library Association, Freedom to Read Foundation, Reporters’ Committee for Freedom of the Press, and Ninth Circuit Federal and Community Defenders. Focusing on the Fourth Amendment issue, the brief urged that communications metadata is the contemporary equivalent of Fourth Amendment “papers” and that the third party doctrine is “ill-suited to the Digital Age.”