On September 2, 2020, the US Court of Appeals for the Ninth District, in United States v. Moalin, said the NSA’s mass surveillance program outed by whistleblower Edward Snowden in 2013 was illegal.
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.
They also said it was probably unconstitutional.
Edward Snowden never thought he’d live to see the day.
I didn’t think I would either, yet here we are.
Seven years ago, as the news declared I was being charged as a criminal for speaking the truth, I never imagined that I would live to see our courts condemn the NSA’s activities as unlawful and in the same ruling credit me for exposing them.
And yet that day has arrived. https://t.co/FRdG2zUA4U
— Edward Snowden (@Snowden) September 2, 2020
More from the ruling in United States v. Moalin:
Two days before trial, the prosecution disclosed an email from a redacted FBI email address to the government’s Somali linguist, who was monitoring Moalin’s phone calls during the wiretap. The email said:
“We just heard from another agency that Ayrow tried to make a call to Basaaly [Moalin] today, but the call didn’t go through. If you see anything today, can you give us a shout? We’re extremely interested in getting real-time info (location/new #’s) on Ayrow.”
Months after the trial, in June 2013, former National Security Agency (“NSA”) contractor Edward Snowden made public the existence of NSA data collection programs.
One such program, conducted under FISA Subchapter IV, involved the bulk collection of phone records, known as telephony metadata, from telecommunications providers.
Other programs, conducted under the FISA Amendments Act of 2008, involved the collection of electronic communications, such as email messages and video chats, including those of people in the United States.
Snowden’s disclosure of the metadata program prompted significant public debate over the appropriate scope of government surveillance. In June 2015, Congress passed the USA FREEDOM Act, which effectively ended the NSA’s bulk telephony metadata collection program.
The Act prohibited further bulk collection of phone records after November 28, 2015.
Besides ending the bulk collection program, Congress also established new reporting requirements relating to the government’s collection of call detail records.
The government’s application is classified, and the district court denied defendants’ request to see it. Nonetheless, defendants assume, based on the public statements of government officials following the Snowden disclosures, see supra pp. 13–14, that the application relied at least in part on Moalin’s metadata.
Defendants contend that because the metadata was obtained in violation of the “relevance” provision in Subchapter IV, 50 U.S.C. § 1861(b)(2)(A) (2006), the evidence obtained from the subsequent wiretap was therefore “unlawfully acquired” for purposes of Subchapter I, 50 U.S.C. § 1806(e).
The government did not notify defendants that it had collected Moalin’s phone records as part of the metadata program.
Defendants learned that after trial—from the public statements that government officials made in the wake of the Snowden disclosures. See supra pp. 13–14.
Nor did the government provide notice of any additional surveillance, apart from FISA Subchapter I surveillance, it had conducted of defendants.
Defendants contend that at least some such surveillance may have occurred, because the email to the linguist produced by the government two days before trial referred to a phone call to Moalin that had not gone through and therefore presumably would not have been captured by the wiretap of Moalin’s phone. See supra p. 13.
According to defendants, any additional surveillance of Moalin, depending on when it began (and regardless of whether it targeted Moalin), may have provided information used in the wiretap applications or may otherwise have contributed to the evidence used by the government at trial.
Just months after defendants’ convictions, news articles in the wake of the Snowden disclosures revealed that the government had been using evidence derived from foreign intelligence surveillance in criminal prosecutions without notifying the defendants of the surveillance.