Privacy Law

9th Circuit says surveillance program exposed by Snowden was illegal but upholds convictions

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A federal appeals court said Wednesday the massive phone data collection program revealed by whistleblower Edward Snowden, who copied and leaked classified information from the National Security Agency in 2013 when he was a CIA employee and subcontractor, violated federal law and possibly the Fourth Amendment.

But the 9th U.S. Circuit Court of Appeals at San Francisco ruled that, even if the program was unconstitutional, its use against four Somali immigrants didn’t taint other evidence introduced at their trial and their convictions should remain undisturbed.

The Washington Post and Politico have coverage, while How Appealing links to additional coverage and the Sept. 2 decision.

The Somali immigrants were convicted for sending or conspiring to send $10,900 to Somalia to support a terrorist group.

The program by the NSA involved bulk collection of phone records that showed phone numbers involved in a call, as well as the time and duration of the call. The program was established by a series of classified orders. The NSA compiled the metadata information into a searchable database.

NSA officials conducted searches when it identified a phone number linked to a terrorist group. The searches extended for three “hops,” meaning that the NSA would search phone numbers in contact with a suspect number, the numbers that had been in contact with those numbers, and the numbers that had been in contact with those numbers.

After Snowden revealed details of the program, Congress effectively ended it in 2015. Snowden had worked as a systems analyst for the NSA.

The Somali defendants had claimed that the program violated the Fourth Amendment, an argument that “has considerable force,” the 9th Circuit said. But the court concluded that it did not have to decide the constitutional issue because suppression wouldn’t be warranted on the fact of the case.

The appeals court did find, however, that the bulk collection of data violated a section of the Foreign Intelligence Surveillance Act that authorized the government to apply to a FISA court when seeking the production of records involving international terrorism. The law said the application should show reasonable grounds to think the records are relevant to an authorized investigation.

The 9th Circuit said it agreed with a decision by the 2nd Circuit at New York, which held that FISA required the records to be relevant to a specific investigation, rather than counterterrorism investigations generally.

The Somali defendants had argued that a government wiretap application likely relied on wrongfully acquired metadata. But classified evidence shows that metadata wasn’t necessary to show probable cause to obtain the wiretap, the appeals court said.

The wiretap information was the government’s principal evidence at trial. There were discussions of money needed for “rations” and a dollar per day per man to support fighting forces. Several calls involved a man thought to be associated with a terrorist group, who requested money to support “the insurgent.” There was also talk of a “pretense” of supporting orphans and people in need.

Judge Marsha Berzon, an appointee of President Bill Clinton, wrote the 9th Circuit opinion. Joining Berzon’s opinion were Judge Jacqueline Nguyen, an appointee of President Barack Obama; and Judge Jack Zouhary, an appointee of President George W. Bush. Zouhary is an Ohio federal judge sitting by designation on the 9th Circuit panel.

The case is United States v. Moalin.

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