N.D.Ohio: FISA warrant that caught defs’ phone calls was valid

Defendants’ calls were caught up in a FISA warrant and they were indicted for providing material support to terrorists. The collection under the FISA warrant was valid because the government showed “the purpose” of the surveillance was bona fide national security. United States v. Mohammad, 2018 U.S. Dist. LEXIS 154877 (N.D. Ohio Sep. 12, 2018):

Defendants’ constitutional argument focuses on FISA’s amendment by the Patriot Act in 2001. (See Doc. No. 150 at 31-32.) As amended, FISA allows for surveillance when “a significant purpose” of the collection is the acquisition of foreign intelligence information. (Id. at 32 (quoting 50 U.S.C. §§ 1804(a)(6)(B), 1823(a)(6)(B)) (internal quotation marks omitted).) Prior to the amendment, FISA permitted surveillance only when “the purpose” of the surveillance was to obtain foreign intelligence information. Aziz, 228 F. Supp. 3d at 367. This change, Defendants argue, allows the Government to bypass the Fourth Amendment when gathering evidence for a criminal prosecution if the Government simply certifies that a significant purpose of the FISA collection is the acquisition of foreign intelligence information.

Defendants acknowledge that courts have consistently upheld the constitutionality of the “significant purpose” standard. (Doc. No. 150 at 33.) They suggest, however, that these decisions should be revisited because they were issued before “the widely publicized public disclosures regarding the expansive nature of [FISA] Section 702’s PRISM and [u]pstream collections—particularly insofar as they involve the collection of domestic communications of American citizens.” (Id.) Because these surveillance programs allegedly “vacuum-up an untold number of domestic communications,” courts should no longer “naively accept[] that the purpose of FISA surveillance is foreign intelligence.” (Id. at 33-34.)

Controlling precedent decides this issue. In 2005, the Sixth Circuit rejected a Fourth Amendment challenge to FISA’s procedures. Damrah, 412 F.3d at 625. The court explained in Damrah that the defendant’s Fourth Amendment challenge lacked merit, as “FISA has uniformly been held to be consistent with the Fourth Amendment.” Id.; see also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 421 n.8, 133 S. Ct. 1138, 185 L. Ed. 2d 264 (2013) (In Damrah, “the Sixth Circuit ultimately held that FISA’s procedures are consistent with the Fourth Amendment.”). Damrah has not been overturned or altered in light of the public disclosures regarding PRISM and upstream collections. And consequently, Damrah forecloses Defendants’ constitutional challenge.

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