Ninth Circuit Held That FISA Wiretapping Violated FISA & Likely Violated Fourth Amendment

In an opinion issued on Wednesday, the Ninth Circuit held that the government, specifically the National Security Agency (NSA), likely violated the Fourth Amendment when it collected telephone data from millions of Americans and that the government did violate the Foreign Intelligence Surveillance Act (FISA), but suppression of the collected evidence is not warranted on the facts of the suit. Additionally, the court confirmed that the Fourth Amendment requires notice to a defendant when surveillance evidence is used in a suit. The Ninth Circuit also affirmed the convictions of four “members of the Somali diaspora” for sending, or conspiring to send $10,900 to Somalia to support a foreign terrorist group.

The suit was brought before Circuit Judges Marsha S. Berzon and Jacqueline H. Nguyen, as well as District Judge Jack Zouhary; the opinion was delivered by Circuit Judge Berzon.

The lawsuit raised questions about “the U.S. government’s authority to collect bulk data about its citizens’ activities under the auspices of a foreign intelligence investigation, as well as the rights of criminal defendants when the prosecution uses information derived from foreign intelligence surveillance.” The government’s main piece of evidence against the defendants “consisted of a series of recorded calls between (defendant) Moalin, his codefendants, and individuals in Somalia, obtained through a wiretap of Moalin’s phone.” The government obtained access after receiving a court order under FISA. The information about the NSA’s use of wiretapping and telephone metadata collection programs were revealed by former NSA contractor Edward Snowden in 2013.

The court found that after reviewing the classified FISA application and other pertinent information, under Fourth Amendment standards, “the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial.” Furthermore, the Fourth Amendment requires notice to the defendant “when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from the surveillance of that defendant.” The Ninth Circuit noted that it would not decide if the government failed to provide this required notice, because failure to provide such a notice would not prejudice the defendants.

The court rejected the government’s argument that the defendants lacked standing to challenge the telephony metadata collection because the court found that the actions exceeded the scope that Congress authorized. The government, according to the court, was required to show relevance before record collection and therefore violated FISA. Furthermore, after reviewing the classified information, the court stated that the “metadata did not and was not necessary to support the requisite probable cause showing for the FISA Subchapter I warrant application in this case.” Additionally, it was held that the “evidentiary rulings challenged by the defendants did not, individually or cumulatively, impermissibly prejudice the defense.”

In sum, the Ninth Circuit affirmed the defendants’ conviction and determined that the NSA’s conduct violated FISA and may have violated the Fourth Amendment.

Numerous amicus briefs were filed in the suit including Federal Public Defenders, the National Association of Criminal Defense Lawyers, as well as media and privacy groups.

The defendant-appellants were represented by the American Civil Liberties Union in New York; Burcham & Zugman; Law Office of Elizabeth A. Missakian; and Coleman & Balogh LLP. The plaintiff-appellee was represented by the Assistant Attorney General for the Justice Department’s National Security Division and Assistant United States Attorney for the United States Attorney’s Office in San Diego.