Tenth Circuit ruling is victory for FISA Section 702 surveillance authority

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Data Protection, Privacy and Security Alert

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A panel of three judges for the US Court of Appeals for the Tenth Circuit has issued a split 2-1 ruling affirming the conviction of a US resident who had been prosecuted using information collected from warrantless surveillance under Section 702 of the Foreign Intelligence Surveillance Act (FISA).

 

Judges Scott Matheson, a President Obama appointee, and Allison Eid, a President Trump appointee, authored a 163-page majority opinion, issued on December 8, 2021, rejecting constitutional challenges to Section 702 under the Fourth Amendment and the principle of separation of powers. The majority also held that the government had no obligation to disclose to the defendant the classified materials that had supported its use of FISA powers or the specific surveillance techniques it had used during its investigation. The ruling is a significant victory for the US government’s Section 702 surveillance authority.

 

The case so far

 

In 2013, following Edward Snowden’s whistleblowing on NSA surveillance practices, the Department of Justice began notifying defendants if evidence collected by warrantless wiretaps had been used to build a case against them. The first defendant to receive such notice was Jamshid Muhtorov, a legal permanent resident of the US and a political refugee from Uzbekistan.

 

In 2012, Muhtorov was arrested in Chicago for conspiracy to provide material assistance to Uzbekistan's Islamic Jihad Union, a designated terrorist organization. He was convicted in June 2018. On appeal, he argued that the district court had erred in declining to suppress evidence derived from 702 surveillance.

 

What is FISA Section 702?

Section 702 was passed as part of the FISA Amendments Act of 2008 to legalize government surveillance of foreign persons located outside the US to acquire “foreign intelligence information.” “Foreign intelligence information” is defined as:

(1) information that relates to, and if concerning a United States person is necessary to, the ability of the United States to protect against actual or potential attack or other grave hostile acts of a foreign power or an agent of a foreign power; sabotage, international terrorism, or the international proliferation of weapons of mass destruction by a foreign power or an agent of a foreign power; or clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of a foreign power; or

(2) information with respect to a foreign power or foreign territory that relates to, and if concerning a United States person is necessary to the national defense or the security of the U.S. or the conduct of the foreign affairs of the U.S. 50 U.S. Code § 1801(e).

 

Under Section 702, the government may compel companies located in the United States (including internet service providers, as well as more traditional Internet edge providers) to provide electronic communications to, from, or about individuals the government believes are not US persons and are located abroad.  Although Section 702 only allows the government to target foreign persons outside the United States, law enforcement is permitted to use communications collected under Section 702 against any other party to the communication, including US citizens and legal residents.

 

FISA requires that a dedicated court the Foreign Intelligence Surveillance Court (FISC)annually preapprove the government’s procedures used to conduct surveillance pursuant to Section 702 as reasonably designed to target foreigners outside the United States and to minimize the risk of surveilling US persons.  The FISC also approves government petitions to surveil targets under Section 702.

 

In this case, Muhtorov was not the target of the 702 surveillance. Rather, his communications were collected incidentally during the monitoring of a foreign target living abroad. The government used this 702 evidence to show probable cause to surveil Muhtorov directly under FISA Title I ("Traditional FISA") which governs the conduct of electronic surveillance for foreign intelligence purposes of persons, facilities, or property inside the United States.  This Traditional FISA surveillance uncovered email and phone communications that allowed the government to charge and ultimately convict Muhtorov.


The Tenth Circuit's Section 702 holdings

 

Fourth Amendment

Muhtorov argued that because the evidence collected by the traditional FISA surveillance would not have been discovered but for the warrantless 702 surveillance, the Fourth Amendment barred that evidence from being used against him. The court disagreed. Applying the Fourth Amendment "plain view" doctrine, the majority held that, because Muhtorov directly communicated with a lawfully surveilled foreign target, his communications could not be disentangled from those of the target. The judges considered it impracticable to require the government to seek a warrant whenever a foreign surveillance target communicates with a person inside the United States. 

 

The majority also took the novel approach of extending the "incidental overhear" doctrine to Section 702. This doctrine is usually applied in traditional wiretapping cases to allow the government to use information collected about an individual other than the target of the wiretap. The judges reasoned that, as with traditional wiretaps, "lawfully initiated Section 702 surveillance that authorizes collection of a foreign target’s communications [is not] strictly limited to collecting only that target’s communications with non-United States persons." Muhtorov 41.

  

Separation of powers

 

Muhtorov also argued that Section 702 violates the principle of separation of powers because it directs the FISC to determine whether the NSA has complied with FISA's targeting and minimization requirements. Muhtorov construed this to violate the Constitution's requirement that courts can adjudicate only concrete legal issues relating to actual cases.

 

The majority disagreed, noting that the FISC’s Section 702 review is based on the NSA's factual submissions detailing its targeting and minimization procedures. Further, the FISC’s decisions have immediate and legally binding consequences on the government's ability to use 702 surveillance. Thus, the majority held that FISC orders constitute remedies that may be redressed by a favorable judicial decision.

Disclosure of surveillance materials

Finally, Muhtorov argued that the district court should have compelled the government to disclose the materials it used to get approval from the FISC to use Section 702 and traditional FISA surveillance to access his communications. He alleged that his case presented a novel question of law, that the government had misrepresented its use of surveillance techniques, and that the complexity of the surveillance materials necessitated their disclosure.

 

The majority rejected these arguments, finding that FISA had been sufficiently litigated to the point where it was no longer novel. The judges also found that the district court had given no indication that government misrepresentation or the complexity of the materials had interfered with its in camera review.

Implications of the Muhtorov decision

The Muhtorov decision is a major victory for FISA Section 702 authority. The Tenth Circuit now joins the Ninth and Second Circuits in holding that warrantless 702 surveillance of communications involving a person in the United States does not violate the Fourth Amendment. See United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016) and United States v. Hasbajrami, 945 F.3d 641 (2d Cir. 2019).

This growing body of law empowers the government to continue using communications obtained without a warrant to prosecute persons inside the United States.