Bulk data collection under FISA violated the Fourth Amendment. A criminal defendant is entitled to notice of FISA collection. However, exclusion not applied in this case because defendants weren’t prejudiced. United States v. Moalin, 2020 U.S. App. LEXIS 28119 (9th Cir. Sept. 2, 2020):
Four members of the Somali diaspora appeal from their convictions for sending, or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization. Their appeal raises complex questions regarding the U.S. government’s authority to collect bulk data about its citizens’ activities under the auspices of a foreign intelligence investigation, as well as the rights of criminal defendants when the prosecution uses information derived from foreign intelligence surveillance. We conclude that the government may have violated the Fourth Amendment and did violate the Foreign Intelligence Surveillance Act (“FISA”) when it collected the telephony metadata of millions of Americans, including at least one of the defendants, but suppression is not warranted on the facts of this case. Additionally, we confirm that the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. We do not decide whether the government failed to provide any required notice in this case because the lack of such notice did not prejudice the defendants. After considering these issues and several others raised by the defendants, we affirm the convictions in all respects.
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Cavanagh did not address the Fourth Amendment’s notice requirement, but the insight we glean from it bears on our analysis here: because the Fourth Amendment applies to foreign intelligence investigations, U.S. criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence surveillance may have Fourth Amendment rights to protect. The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.
Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function. See Amnesty Int’l USA, 568 U.S. at 421 & n.8.
At the same time, the need for secrecy inherent in foreign intelligence investigations justifies a more circumscribed notice requirement than in the ordinary criminal context. See Kris & Wilson, supra note 5, § 29:2 (discussing the need for secrecy). Whereas the Wiretap Act requires notice at the end of an investigation regardless of whether an indictment is filed, 18 U.S.C. § 2518(8)(d), the FISA and FAA notice provisions are more limited, requiring notice only when the “Government intends to enter into evidence or otherwise use or disclose in any trial … or other proceeding in or before any court … or other authority of the United States, against an aggrieved person, any information obtained or derived from an electronic surveillance of that aggrieved person pursuant to the authority of this subchapter,” 50 U.S.C. § 1806(c); see id. §§ 1825(d) (physical search), 1845(c) (pen register and trap-and-trace surveillance); 1881e(a)(1) (FAA). According to the Senate Judiciary Committee Report accompanying FISA, Congress was aware that it was “depart[ing] from traditional Fourth Amendment criminal procedures,” but it concluded that the “need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination” of the “requirement of subsequent notice to the surveillance target … unless the fruits are to be used against him in legal proceedings.” S. Rep. No. 95-701, at 11–12 (1978) (emphasis added).
At a minimum, then, the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. See Dalia, 441 U.S. at 248; Berger, 388 U.S. at 60.
This constitutional notice requirement applies to surveillance conducted under FISA and the FAA, which codify the requirement with respect to several types of surveillance. 50 U.S.C. §§ 1806(c), 1825(d), 1845(c), 1881e(a)(1). It also applies to surveillance conducted under other foreign intelligence authorities, including Executive Order 12,333 and the FAA’s predecessor programs. Indeed, the notice requirement is of particular importance with regard to these latter, non-statutory programs precisely because these programs lack the statutory protections included in FISA. Where statutory protections are lacking, the Fourth Amendment’s reasonableness requirement takes on importance as a limit on executive power, and notice is necessary so that criminal defendants may challenge surveillance as inconsistent with that requirement.
We emphasize that notice is distinct from disclosure. Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security, we emphasize that notice is distinct from disclosure.
Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security, then the court can review the materials bearing on its legality in camera and ex parte. See, e.g., 50 U.S.C. § 1806(f) (allowing in camera, ex parte review of the legality of electronic surveillance under FISA Subchapter I if “the Attorney General files an affidavit under oath that disclosure or an adversary hearing would harm the national security of the United States”).
