A person in the U.S. has a diminished privacy interest in emails between himself and foreign nationals that the NSA can intercept. Incidental capturing of emails between defendant in the U.S. and others elsewhere didn’t violate the Fourth Amendment because the privacy interest was reduced, and the target was a foreign national without Fourth Amendment protection. The minimization that the government performed was similar to the minimization in a wiretap. Also, the government’s late disclosure of notice of the intercept wasn’t prejudicial because the district court held hearings on the merits of that issue. United States v. Mohamud, 2016 U.S. App. LEXIS 21622 (9th Cir. Dec. 5, 2016) [and see articles at end of post]:
Consistent with Verdugo-Urquidez and our precedent, we hold that this particular type of non-upstream collection—where a search was not directed at a U.S. person’s communications, though some were incidentally swept up in it—does not require a warrant, because the search was targeted at a non-U.S. person with no Fourth Amendment right.
The FISA Review Court in In re Directives Pursuant to Section 105B of FISA, similarly applied this principle, holding that “incidental collections occurring as a result of constitutionally permissible acquisitions do not render those acquisitions unlawful.” 551 F.3d 1004, 1015 (FISA Ct. Rev. 2008); see also United States v. Donovan, 429 U.S. 413, 436 n.24, 97 S. Ct. 658, 50 L. Ed. 2d 652 (1977) (holding that a Title III wiretap warrant is not made unconstitutional by “failure to identify every individual who could be expected to be overheard,” but “the complete absence of prior judicial authorization would make an intercept unlawful”); United States v. Bin Laden, 126 F. Supp. 2d 264, 280 (S.D.N.Y 2000) (explaining that “in the Title III context, incidental interception of a person’s conversations during an otherwise lawful surveillance” does not violate the Fourth Amendment).
Mohamud and Amici urge us not to apply this “incidental overhear” approach. First, Amici contend that surveillance of U.S. persons’ communications under § 702 is not “incidental” because the monitoring of communications between foreign targets and U.S. persons was specifically contemplated and to some degree desired. We agree that such communications were anticipated. As the Privacy and Civil Liberties Oversight Board found with respect to PRISM collection, “[t]he collection of communications to and from a target inevitably returns communications in which non-targets are on the other end, some of whom will be U.S. persons. Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent.” PCLOB Report at 82; see also Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv. J.L. & Pub. Pol’y 117, 159-64, 259-62 (2015) (discussing the relative volume and intrusiveness of surveillance authorized under § 702). The fact that the government knew some U.S. persons’ communications would be swept up during foreign intelligence gathering does not make such collection any more unlawful in this context than in the Title III or traditional FISA context.
Mohamud and Amici also contend that the “sheer amount of ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does increase the importance of minimization procedures once the communications are collected.
Additionally, Mohamud and Amici contend that prior cases upholding incidental collection involved prior judicial review or a “narrowly drawn exception to the warrant requirement,” as opposed to the collection here. See, e.g., United States v. Kahn, 415 U.S. 143, 156-57, 94 S. Ct. 977, 39 L. Ed. 2d 225 (1974) (upholding interception of communications of a woman that were incidentally collected under a wiretap order targeting her husband); United States v. Figueroa, 757 F.2d 466, 473-75 (2d Cir. 1985) (holding that wiretap order was not made unconstitutional by permitting interception of conversations of “others as yet unknown”); see also United States v. Martin, 599 F.2d 880, 884-85 (9th Cir. 1979) (holding that the Fourth Amendment does not require wiretap application to show probable cause that non-targeted individual named as a “probable converser” committed a crime), overruled on other grounds by United States v. De Bright, 730 F.2d 1255 (9th Cir. 1984) (en banc). However, the searches in those cases targeted United States citizens and took place within the United States, so a warrant was required for the initial search to be constitutionally permissible. But “the guiding principle behind them applies with equal force here: when surveillance is lawful in the first place—whether it is the domestic surveillance of U.S. persons pursuant to a warrant, or the warrantless surveillance of non-U.S. persons who are abroad—the incidental interception of non-targeted U.S. persons’ communications with the targeted persons is also lawful.” Hasbajrami, 2016 U.S. Dist. LEXIS 3061, 2016 WL 1029500, at *9.
For these reasons, and because the target of the surveillance was a non-U.S. person located outside of the United States at the time of the surveillance, the government was not required to obtain a search warrant to collect Mohamud’s email communications with the overseas foreign national as an incident to its lawful search of the foreign national’s email.
b. Collection of Mohamud’s Emails was Reasonable
Assuming that Mohamud had a Fourth Amendment right in the incidentally collected communications, the search at issue was reasonable under the Fourth Amendment.
“Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.” Maryland v. King, 133 S. Ct. 1958, 1970, 186 L. Ed. 2d 1 (2013). In deciding reasonableness, we examine the totality of the circumstances and weigh “‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy.'” Id. (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S. Ct. 1297, 143 L. Ed. 2d 408 (1999)). We agree with the district court that under these circumstances, the search was reasonable under the Fourth Amendment.
i. Government Interest
“[T]he Government’s interest in combating terrorism is an urgent objective of the highest order.” Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S. Ct. 2705, 177 L. Ed. 2d 355 (2010). Neither Mohamud nor Amici challenge this. Instead, they argue that (1) the statutory definition of “foreign intelligence information” in § 702 is overbroad because it is not confined to national security information but also includes “the conduct of [] foreign affairs”; and (2) even if national security justifies the initial acquisition, it is unreasonable to then retain and later search U.S. persons’ § 702-acquired communications without a warrant.
The declassified facts foreclose both arguments. First, as the district court observed, “the discovery in this case all concerned protecting the country from a terrorist threat and did not stray into the broader category of the conduct of foreign affairs.” Thus, we need not determine whether the collection of foreign affairs communications is reasonable. Similarly, the second argument is also outside the scope of our review, as no such retention and querying is at issue in this case.
ii. Mohamud’s Privacy Interest
The parties agree that Mohamud had some expectation of privacy in his electronic communications, but disagree as to the strength of his interest. The government argues that U.S. persons have a limited expectation of privacy when communicating electronically with non-U.S. persons located outside the United States because of the Fourth Amendment’s “third-party” doctrine—that a person’s privacy interest is diminished where he or she reveals information to a third party, even in confidence. Mohamud contends that the voluntary disclosure of information to third parties does not reduce the expectation of privacy. The district court determined that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties. We agree.
With respect to a U.S. person’s privacy interest, we treat emails as letters. See, e.g., [Redacted], 2011 U.S. Dist. LEXIS 157706, 2011 WL 10945618, at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted by letter, telephone or e-mail, a person’s private communications are akin to personal papers.”); United States v. Warshak, 631 F.3d 266, 285-86 (6th Cir. 2010) (“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”). Accordingly, until electronic communications reach the recipient, they retain the same level of privacy interest as if they were still in the home. See, e.g., United States v. Van Leeuwen, 397 U.S. 249, 251, 90 S. Ct. 1029, 25 L. Ed. 2d 282 (1970).
But as with letters, “[a] person’s reasonable expectation of privacy may be diminished in ‘transmissions over the Internet or e-mail that have already arrived at the recipient.'” United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon delivery’ of the letter.” (citation omitted)).
It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443, 96 S. Ct. 1619, 48 L. Ed. 2d 71 (1976); United States v. White, 401 U.S. 745, 752, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971); Hoffa v. United States, 385 U.S. 293, 302, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 U.S. Dist. LEXIS 3061, 2016 WL 1029500 at *11 & n.18 (observing same distinction).
Thus, Mohamud’s interest in the privacy of his communications received by the overseas foreign national is diminished.
iii. Privacy Protecting Measures
An important component of the reasonableness inquiry is whether the FISC-approved targeting and minimization measures sufficiently protect the privacy interests of U.S. persons. Targeting and minimization procedures govern, respectively, who may be targeted for surveillance and how intercepted communications are to be retained and disseminated.
In brief, targeting procedures must be “reasonably designed” to “ensure that any acquisition authorized under [the certification] is limited to targeting persons reasonably believed to be located outside the United States” and to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” 50 U.S.C. § 1881a(d)(1). Among other requirements, minimization procedures must be “reasonably designed” “to minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” 50 U.S.C. §§ 1801(h)(1), 1881a(e)(1).
After evaluating the protections detailed in § 702 and the classified minimization procedures, the district court concluded that as applied to Mohamud, § 702 is reasonable under the Fourth Amendment. Based on our review of the classified record, we agree that the applicable targeting and minimization procedures, which were followed in practice, sufficiently protected Mohamud’s privacy interest.
See: Just Security: The Ninth Circuit’s Constitutional Detour in Mohamud by Elizabeth Goitein; WaPo: 9th Circuit upholds warrantless email surveillance of person in the U.S. communicating with foreigners abroad when the foreigners are the ‘targets’ by Orin Kerr
