In the first decision by a court on the issue, 2014 WL 2866749, Judge King held, on June 24, 2014, that Section 702 does not violate the Fourth Amendment. In reaching this decision, he started from the premise that under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), the Fourth Amendment does not protect foreigners outside the United States from being targeted for Section 702 surveillance. He then reasoned that since targets enjoy no Fourth Amendment protection, the Fourth Amendment’s warrant requirement does not apply to Americans whose communications are incidentally collected under Section 702.
This reasoning is questionable in that Verdugo-Urquidez arguably only applies to searches of foreigners outside the United States, while interceptions of communications under Section 702 take place within the United States. (See Section 1 above) Similarly, in claiming that the warrant requirement does not extend to the incidental acquisition of Americans’ communications, Judge King cited cases in which, by contrast to Section 702’s incidental interception within the United States of communications by Americans living in the United States, surveillance was conducted overseas on Americans located there. See Opinion and Order of June 24, 2014 at 26 (citing In re Terrorist Bombings of United States Embassies in East Africa, 552 F.3d 157, 167 (2d Cir. 2008); United States v. Barona, 56 F.3d 1087, 1092 n.1 (9th Cir. 1995)). The judge also invoked the opinion of the FISC Court of Review in In re Directives for the proposition that “incidental collection occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.” Id. (citing In re Directives 515 F. 3d 1004, 1015). That proposition is inapposite, however, to whether incidental, as opposed to targeted, interception is lawful.
Judge King went on to reason that even if the same Constitutional protections apply to incidental and targeted collection of Americans’ communications for foreign intelligence purposes, the foreign intelligence exception to the warrant requirement applies to the interception of Americans’ communications under Section 702. “When I balance the intrusion on the individual’s interest in privacy, namely the incidental collection of U.S. persons’ communications, against those special needs [for secrecy and stealth] when the government targets a non-U.S. person believed to be outside the United States, I conclude the foreign intelligence exception applies and no warrant is required.” At 31.
Further, the judge rejected the claim that the absence of any requirement of individualized suspicion makes Section 702 incompatible with the Fourth Amendment. Here, he relied heavily on the FISC Court of Review’s holding in In re Directives that the Fourth Amendment was not violated by the targeted acquisition, under the Protect America Act (“PPA”), of communications of Americans located overseas. The judge acknowledged that while the PPA required probable cause, though not a warrant, for the targeted acquisition of Americans’ communications, “Section 702 has no such probable cause requirement.” Nonetheless, he insinuated that surveillance of Americans under Section 702 is more attuned to the Fourth Amendment’s concern with particularity than surveillance under the PPA. “Section 702 … prohibits targeting a U.S. person under any circumstances, even if the person is located outside the United States and acting as a foreign power or agent of a foreign power. Consequently, I conclude this difference [with the PPA] does not diminish the particularity to the point of making the collection unreasonable under the Fourth Amendment.” At 37. Arguably, this reasoning fails to take into account that Section 702 permits the incidental acquisition of Americans’ communications with anyone reasonably believed to be a foreigner overseas; there is no need to suspect either the foreigner or the American of involvement in terrorism or criminal activity.
In addition, Judge King reasoned that the Fourth Amendment’s reasonableness requirement is satisfied by the balance between the interference with privacy under Section 702 and the furtherance of the government’s “compelling” interest in national security. At 38. Against this, the defense had contended that since FISA’s broad definition of “foreign intelligence information” encompasses “the conduct of the foreign affairs of the United States,” Section 702 may be used to further government interests including “international trade, [not] just threats to national security.” The judge, refused, however, to consider the potential breadth of the purposes of Section 702 surveillance. He reasoned that the discovery in Mr. Mohammed’s case, which he intended to discuss in a separate classified opinion, “all concerned protecting the country from a terrorist threat and did not stray into the broader category of the conduct of foreign affairs.” At 39. Should judges follow Judge King’s lead in criminal cases and should Amnesty International’s barrier to civil challenges to Section 702 remain, the issue of whether the purposes of Section 702 are so broad as to violate the Fourth Amendment is likely to evade judicial review.
Judge King went on to minimize Section 702’s interference with privacy by claiming that the third party doctrine applies if the government acquires Americans’ communications after they are received by foreign targets. Fourth Amendment protections are radically constricted, however, if the government’s right to information revealed to third parties no longer depends, as in the lead Supreme Court cases, on third party consent. See United States v. White, 401 U.S. 745 (1971); United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).
Contrasting with his reaction to other arguments, Judge King found that it was “a very close question” whether warrantless “backdoor” searches of data acquired under Section 702 violated the Fourth Amendment. He reasoned, however, that backdoor searches are permissible since the government “must review information lawfully collected to decide whether to retain or disseminate it under the minimization procedures.” At 45. The crucial distinction missed here is that privacy is protected when data is reviewed for the purpose of preventing information about U.S. persons from being disseminated and retained. By contrast, privacy is infringed when data is reviewed for the purpose of determining whether a specific U.S. person can be linked to terrorism or crime. (See the June 20, 2014 entry in Aidan Booth and Adina Schwartz, “International Chronicle of Surveillance Events-2014,” for discussion of and links to a House of Representatives bill prohibiting backdoor searches).
In conclusion, Judge King found that even if Section 702 violated the Fourth Amendment, the good faith exception to the exclusionary rule applied.
After the district court denied his discovery and suppression motions, Mr. Mohamud was sentenced to 30 years’ imprisonment on September 30, 2014.