United States v. Moalin, et al., et al. No. 10cr4246, slip copy, 2013 WL 6079518 (S.D.Cal. Nov. 18, 2013) (denying motion for a new trial), appeal pendingThe defendants were convicted on February 22, 2013 of providing material support to the Somalian terrorist group al Shabaab. In the wake of Snowden’s revelations, they moved for a new trial on the ground that their Fourth Amendment rights were violated by the NSA’s discovery, through its telephony metadata program, that Moalin’s telephone number was connected to the numbers of members of al Shabaab. To the contrary, the Court held that the collection of metadata on Moalin’s calls was a pen register squarely governed by Smith v. Maryland. The defendants had attempted to distinguish Smith v. Maryland away by invoking Justice Sotomayor’s suggestion, in her concurrence in Jones, that the doctrine that Fourth Amendment protections do not extend to information revealed to third parties needed to be reevaluated in response to “the recent rise of the digital era of cell phones, internet, and email communications.” The Court dismissed this argument on the ground that “the use of pen register-like devices—going back to Samuel Morses’s 1840 telegraph patent—predates the digital era and cannot be considered a product of the digital revolution like the internet or cell phones.”
The Court’s reasoning arguably fails to take account of the fact that while a pen register was attached to Smith’s phone after he was identified as a suspect, the NSA discovered the connection between Moalin’s and the al Shabaab members’ phone numbers by querying its massive telephony metadata database. Since the NSA’s assemblage of a vast database and methods for querying it are very much “the product of the digital revolution,” the Court’s basis for disregarding Justice Sotomayor’s position in Jones fails. See “The Era of Big Pen Register: The Flaw in Jeffrey Miller’s Moalin Decision,” Emptywheel, posted November 16, 2013.