On May 9, 2014, the government filed an unclassified memorandum, from which classified material was redacted, opposing the motions in United States v. Jamshid Muhtorov, Criminal Case No. 1:12-cr-00033-JLK-01 (D.Colo. filed Jan. 19, 2012), for suppression and discovery. In regard to the motion to suppress, the government argued that Sec. 1881a surveillance is exempt from the Fourth Amendment’s warrant requirement since it is targeted at foreigners outside United States who, under United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), do not enjoy Fourth Amendment rights. Sec. 1881a surveillance also does not violate Americans’ rights since their communications are incidentally, rather than intentionally, acquired. The government relied on Verdugo-Urquidez even though it acknowledged that that case “involved a physical search that was conducted overseas, while collection under Section 702 takes place within the United States.” At 40. Attempting to dismiss the relevance of where a search occurs, the government stated that “when the government collects the communications of a non-U.S. person located abroad, whether the communication takes place in the United States or abroad makes no difference to the person’s privacy interests and should not affect the constitutional analysis.” At 40-41.
A problem with the government’s argument is that the Rehnquist opinion in Verdugo-Urquidez is merely a plurality opinion. In his concurrence, Justice Kennedy rejected Justice Rehnquist’s position that the Fourth Amendment does not apply to searches of foreigners outside the United States, and only claimed that the warrant requirement does not extend to such searches. In reasoning that the imposition of “the Fourth Amendment’s warrant requirement [would be] impractical and anomalous,” Justice Kennedy referred to problems that can arise only when searches are conducted outside the territorial bounds of the United States: “[t]he absence of local judges or magistrates available to issue warrants, the differing and perhaps unascertainable conceptions of reasonableness and privacy that prevail abroad, and the need to cooperate with foreign officials.” 494 U.S. at 278. Hence, the government position that Verdugo-Urquidez governs Sec. 702 searches, even though they are conducted within the United States, is not the position of the majority in Verdugo-Urquidez.
In addition to relying on Verdugo-Urquidez, the government relied on the special needs exception to the warrant requirement. Extending the exception, the government contended that even FISA warrants are not needed for the Fourth Amendment’s reasonableness requirement to be met. “Changes in technology and the manner of collecting foreign intelligence information, as well as the shifting threat and communications methods employed by transnational terrorist groups, make it impractical for the government to obtain traditional warrants or FISC orders for the acquisition currently authorized under Section 702.” At 47.
Along with this, the government claimed that the balance of governmental and individual interests means that individualized suspicion is not required for the acquisition of Americans’ communications under Sec. 702 to meet the reasonableness requirement. On the one hand, “[t]he government’s interest in conducting acquisitions pursuant to Section 702 ‘is of the highest order of magnitude.’” At 55. By contrast, Americans “have, at most, limited expectations of privacy in communications obtained through targeting non-U.S. persons outside the United States.” At 58. Radically extending the third party doctrine, the government insinuated that American have no Fourth Amendment rights in regard to any of their communications that non-Americans receive overseas. “[O]nce a non-U.S. person located outside the United States receives a communication, the sender loses any cognizable Fourth Amendment rights with regard to that communication. That is true even if the sender is a U.S. person protected by the Fourth Amendment, because he assumes the risk that the foreign recipient will give the information to others, leave the communication freely accessible to others, or that the U.S. government (or a foreign government) will obtain the communication.” At 59. See Jameel Jaffer, “The official US position on the NSA is still unlimited eavesdropping power,” The Guardian, May 14, 2014 (commenting that the US government’s position in the briefs filed in this case and the Mohamud case is that nothing in the Constitution “bars the NSA from monitoring every call and email between Americans in the United States and their non-American friends, relatives, and colleagues overseas. … [T]here is no need to ask whether the 2008 law [i.e., the FISA Amendments Act’s provision for warrantless surveillance, incorporated in FISA as Section 702] violates Americans’ privacy rights, because in this context Americans have no rights to be violated.”).
As an additional basis for claiming that the acquisition of Americans’ communications under Sec. 702 satisfies the Fourth Amendment’s reasonableness requirement, the government invoked the border search doctrine. “Although the government does not contend that the Section 702 collection here was per se reasonable under the border search doctrine, the point remains that the principles underlying that doctrine support the constitutional reasonableness of the collection at issue in this case because, as a minimum, privacy expectations are sharply reduced in their context.” At 61. In a footnote, the government raised the possibility of a race to the bottom, stating that the defendants’ expectations of privacy were further reduced because their foreign correspondents might be subject to surveillance by foreign governments or entities that did not conform to the Constitution or to federal law. At 61 n.37.
In the alternative, the government urged that the Fourth Amendment’s reasonable requirement was met because the targeting and minimization procedures and other requirements for obtaining a Sec. 702 order stringently protect Americans’ privacy. Moreover, even if the surveillance in the case violated the Fourth Amendment, the good faith exception to the exclusionary rule should apply.