Federal Court Rules FBI Acted Inappropriately

Lianhao Qu/UNSPLASH

Since former NSA contractor Edward Snowden leaked the NSA’s practices of mass surveillance on the American People, questions and cases have been raised against the US government’s abuses of power and violations of citizens’ privacy. A recent court case dealt a blow to the discretionary power of the FBI and NSA in their ability to monitor telephone metadata (phone records, calls, texts, etc.) of American citizens and residents. 

The United States Court of Appeals for the Ninth Circuit filed the case of United States v. Moalin on September 2nd; Basaaly Saeed Moalin is one of four Somali immigrants who were defendants against the US in the trial. The trial aims to conclude whether FBI surveillance used to convict the four individuals was just. Moalin and his associates were convicted for sending $10,900 to Al-Shabaab, a US designated terrorist group within Somalia, which has sworn allegiance to Al-Qaeda.

The case, filed in the Ninth Circuit Court of Appeals, was presented before Circuit Judges Marsha S. Berzon and Jacqueline H. Nguyen, and they were joined by District Judge Jack Zouhary for the Northern District of Ohio. Judge Berzon delivered the opinion of the court, who ruled that the FBI’s methods of obtaining evidence were illegal, however, the convictions still stood. 

A litigator working on behalf of the American Civil Liberties Union (ACLU) was present on the counsel for the defendants. The ACLU has been a very prominent voice against the proliferation of government surveillance, more specifically, their strong positions on Section 702, which is a provision from the 2008 FISA Amendments Act that allows the government to target foreign-born individuals outside of the US.

Section 702 is the main legal apparatus by which the US conducts foreign spying, and allegedly contains rigorous protections against ‘spying’ on American citizens and current residents. The plaintiffs referred to the case of Smith v. Maryland as a precedent for their appeal. Smith involved the police using a pen register to record a suspect’s number that had been repeatedly calling the victim’s home. 

The Supreme Court sided with the police’s actions even though they did not obtain a warrant for a pen register, instead claiming that a phone number was voluntarily entrusted with a third party, rendering the Fourth Amendment inapplicable. Judge Berzon acknowledged the similarity, yet highlighted the enormous contrast in the scale and magnitude of information that was being collected between the two cases.

However, as Judge Berzon points out in her opinion, over a million other civilians alongside Maolin had their metadata evaluated every day for several years. Smith only involved law enforcement monitoring the phone numbers of callers for a couple of days, but the FBI could have an elaborate mosaic of interpersonal relations for an individual's whole lifetime. 

Furthermore, Berzon referenced challenges to the viability of the exemption for third party access when evaluating the scope of Fourth Amendment protections. Therefore, Berzon recognized the validity and potency of the defendants’ claims. Despite her acknowledging that the methods for obtaining the evidence against the defendants were potentially unconstitutional, Judge Berzon did not deem the evidence worthy of suppression or tainted beyond presentation at trial. 

Whenever the FBI or NSA wishes to gain permission to obtain information on foreign targets, they must apply to the FISA court for approval under Subsection IV of Section 702. Berzon declared that the FISA court had exceeded the scope of Congress’s authorization for granting permission to gather intelligence. Though the court decided that suppression should be a remedy reserved for statutory violations alone and deemed it “unfavorable” in the case of Maolin.

This decision will have very intriguing effects in terms of public perception and further discourse on the powers of FISA, which has already been under serious scrutiny for the past several years. FISA has faced even greater ridicule recently as President Trump accused them and the FBI for facilitating an allegedly politically motivated investigation into his 2016 campaign. 

The Justice Department released a report earlier this year calling to attention 17 apparent errors within 29 FISA applications under audit. The Justice Department was seeking suspected malfeasance within the investigations of Carter Page, a 2016 Trump Foreign Policy advisor. However, the investigations revealed only very minor errors as opposed to misstatements or false information. 

Despite President Trump’s scrutiny of FISA, he signed off on the FISA Reauthorization Act in 2018. Thereby reauthorizing Title VII of FISA until the end of 2023, including Section 702. Section 702 is not a particularly popular policy, and it has drawn criticism for its usage on American citizens and its likelihood to be used against minority populations. 

The FBI should expect a greater outcry from the public following this case, which has exposed further abuses of Section 702. Despite these violations being mostly clerical in nature, the perception has been on a downward trend since the Snowden leaks.