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U.S. Government's Snooping Is Fine by One Court

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Do you ever call or e-mail abroad? If so, be aware: The government could be listening, and it can use the content of those conversations against you -- without ever getting a warrant. That’s the upshot of an appeals court holding in the case of Mohamed Mohamud, who was convicted of an attempted bombing in Portland, Oregon. The decision is doubtful as a matter of constitutional law, and sooner or later, the U.S. Supreme Court will have to weigh in on the issue.

Mohamud was caught up in an FBI sting right out of a TV show, in which he was convinced to try to detonate a fake bomb at a Christmas tree lighting ceremony on the Friday after Thanksgiving in 2010. Mohamud was convicted in 2013. The U.S. Court of Appeals for the 9th Circuit has now rejected his appeals, one claiming that he was entrapped and the other claiming that the government violated his Fourth Amendment privacy rights.

QuickTake Privacy Vs. Security

The Fourth Amendment claim is the more legally significant, because it involves interception of e-mails under Section 702 of the Foreign Intelligence Surveillance Amendments Act of 2008. The law permits the U.S. government to target a non-Americans living abroad and intercept their communications without a warrant. The law allows the surveillance to be conducted inside the U.S.

In the process of targeting and surveilling what the law calls “non-U.S. persons” abroad, the government may also capture e-mails and phone calls made by Americans living in the U.S.

That’s what happened to Mohamud, a Somali-American living in Oregon. The government had targeted a person abroad -- we don’t know for certain who -- and Mohamud was e-mailing with that person. The government read Mohamud’s e-mails, and then used them to get a warrant to intercept all of Mohamud’s further communications.

This is an important test case because the government didn’t tell Americans who were being tried before 2013 that it had gathered evidence against them using its Section 702 authority. Mohamud was one of the first criminal defendants to receive notice that the government had used that power to investigate him.

The constitutional problem should be obvious. The Fourth Amendment guarantees Americans the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” That ordinarily means the government can’t read your e-mail or listen to your phone calls without a warrant obtained after a showing of probable cause.

But the government read Mohamud’s e-mails without a warrant -- then used the information in those e-mails to pursue its investigation against him. The investigation took place inside the U.S., and the e-mails were written inside the U.S. by an American. That sounds like a violation of the Fourth Amendment.

The 9th Circuit held that Mohamud’s rights weren’t violated, because the surveillance that captured his e-mails was targeted at a foreigner outside the U.S. As a result, the court reasoned, Mohamud’s private communications were captured “incidentally.”

Only one federal appeals court -- as it happens, the special Foreign Intelligence Surveillance Court -- has relied on this incidental collection theory before. But that decision focused on the risk of error in collection, and the court emphasized that minimization procedures were in place.

Not so regarding Mohamud. The 9th Circuit acknowledged that incidental collection in cases like his is vast. It even admitted that the so-called incidental collection of e-mails like his is “not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target.”

In other words, one of the very reasons the government targets some foreigners abroad for surveillance is to figure out who they’re talking to in the U.S., and what is being said to them by the Americans.

Yet the appeals court insisted that, nonetheless, the “incidental” nature of the analysis meant the Constitution was not violated.

This logic is unconvincing, for two reasons. First, it’s not at all clear that there should be a privacy exception for the incidental capture of what would otherwise be constitutionally protected private information. As the Fourth Amendment scholar Orin Kerr noted in his analysis of the decision, the fact that Section 702 makes a statutory distinction between targeted and untargeted surveillance doesn’t mean the Constitution includes such a distinction.

Second, even if the difference between targeting and incidental collection were treated as constitutionally significant, it still doesn’t make sense to say that the government’s collection of Mohamud’s e-mails was “incidental.” If the point of intercepting the foreigner’s e-mails was to identify U.S. correspondents, then identifying those targets isn’t an incidental effect: It’s the whole purpose. The appeals court has distorted the word “incidental” well beyond its plain meaning.

The 9th Circuit won’t be the last court to rule on this issue. The Supreme Court may take Mohamud’s case straight away because of its importance, or it may wait to see whether other appeals courts disagree, as I strongly expect they will. Eventually, it’s most likely that the justices will tackle the issue.

But until the Supreme Court does, it’s worth remembering the practical upshot. With no warrant, the government can review your calls and e-mails to people abroad, and use that evidence to investigate you. Think that over the next time you pick up the phone or sit down at the computer.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net