Defendant is one of the few convicted using NSA's phone surveillance program.
Seven months after his conviction, Basaaly Moalin’s defense attorney moved for a new trial (PDF), arguing that evidence collected about him under the government’s recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. Moalin’s is the only thwarted "terrorist plot" against America that the government says also "critically" relied on the National Security Agency phone surveillance program, conducted under Section 215 of the Patriot Act.
The government’s response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person’s information without a warrant, it can monitor everyone’s information, “regardless of the collection’s expanse.” Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court.
The success of these arguments is critical to the government; the terrorist plot for which Moalin and three other defendants were convicted in February was sending about $8,500 to al-Shabaab, known most recently for the Kenyan Westgate mall attack. The money was sent in 2007 and 2008.
The United States government designated al-Shabaab—which means “The Youth"—a terrorist group in 2008, but the FBI’s extensive wiretapping of Moalin started about two months before that. FBI Deputy Director Sean Joyce recently revealed to Congress that the FBI had also conducted another investigation into Moalin's activities in 2003 and ultimately concluded that there was “no nexus to terrorism.” This evidence was kept from the defense during trial.
The government’s opposition to a new trial relies heavily on a recently declassified opinion from the Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”
In an e-mail interview for this piece, Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, said the government's arguments are consistent with how it has justified these programs in other places. “But one of the most interesting aspects of the response in the Moalin case is… to argue there’s no standing.” The government has always argued that there’s no reasonable expectation to privacy in information handed to a third party like your phone or Internet provider, commonly referred to as the "third-party doctrine." But Fakhoury says that in this case, the government is taking an even more aggressive stance. In essence, its argument is that “these records aren’t even Moalin’s to begin with so he can’t complain.”
Fakhoury disagrees “with the idea that the user has no standing to challenge the use of evidence that says something about him” and thinks the government undermines its own argument about who has standing to contest the evidence. “[T]hey want to use the phone records to prove a fact about Moalin but then claim that these records aren’t his.”
But Fourth Amendment analysis is dependent on what constitutes a “reasonable expectation of privacy,” which is an inherently fluid term that has proven to be a dividing line. Within a week of that Arizona decision, a federal court in Michigan found that a warrant was required to track cell phone location data over the course of seven months—even if such information was technically metadata to which third parties have access.
The Supreme Court’s ultimate guidance seems like an inevitability. While the ‘regardless of scope’ argument has proven an impossible hurdle for some defendants, the most recent Supreme Court case on point, US v. Jones, offers significant hope to privacy advocates. There, the government had a similar argument as in Moalin, which the Court thoroughly rebuffed: it argued that an officer could have followed the defendant the whole time without violating any constitutional rights. In Moalin, that’s analogous to saying that the government could have accessed any individual’s phone records without any problem, and therefore, with the help of new technology, it should be able to access every record. Five justices held (in minority and concurring opinions) that continual tracking of a single person over the course of 28 days, through GPS tracking, violated a person’s reasonable expectation of privacy, simply because people expect such comprehensive surveillance to be improbable based on cost to law enforcement alone. More on this important story@
http://arstechnica.com/doj-if-we-can-track-one-american-we-can-track-all-americans/
The government’s response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person’s information without a warrant, it can monitor everyone’s information, “regardless of the collection’s expanse.” Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court.
The success of these arguments is critical to the government; the terrorist plot for which Moalin and three other defendants were convicted in February was sending about $8,500 to al-Shabaab, known most recently for the Kenyan Westgate mall attack. The money was sent in 2007 and 2008.
The United States government designated al-Shabaab—which means “The Youth"—a terrorist group in 2008, but the FBI’s extensive wiretapping of Moalin started about two months before that. FBI Deputy Director Sean Joyce recently revealed to Congress that the FBI had also conducted another investigation into Moalin's activities in 2003 and ultimately concluded that there was “no nexus to terrorism.” This evidence was kept from the defense during trial.
The government’s opposition to a new trial relies heavily on a recently declassified opinion from the Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”
In an e-mail interview for this piece, Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, said the government's arguments are consistent with how it has justified these programs in other places. “But one of the most interesting aspects of the response in the Moalin case is… to argue there’s no standing.” The government has always argued that there’s no reasonable expectation to privacy in information handed to a third party like your phone or Internet provider, commonly referred to as the "third-party doctrine." But Fakhoury says that in this case, the government is taking an even more aggressive stance. In essence, its argument is that “these records aren’t even Moalin’s to begin with so he can’t complain.”
Fakhoury disagrees “with the idea that the user has no standing to challenge the use of evidence that says something about him” and thinks the government undermines its own argument about who has standing to contest the evidence. “[T]hey want to use the phone records to prove a fact about Moalin but then claim that these records aren’t his.”
A history of terms
Legally speaking, both sides have an argument. The Supreme Court has broadly endorsed the third-party doctrine since a pivotal case in 1979, and many lower courts have treated digital-age information very similarly. This year, a federal court in Arizona found that the acquisition of 1.8 million IP addresses did not violate a defendant’s Fourth Amendment rights after specifically citing that 1979 case.But Fourth Amendment analysis is dependent on what constitutes a “reasonable expectation of privacy,” which is an inherently fluid term that has proven to be a dividing line. Within a week of that Arizona decision, a federal court in Michigan found that a warrant was required to track cell phone location data over the course of seven months—even if such information was technically metadata to which third parties have access.
The Supreme Court’s ultimate guidance seems like an inevitability. While the ‘regardless of scope’ argument has proven an impossible hurdle for some defendants, the most recent Supreme Court case on point, US v. Jones, offers significant hope to privacy advocates. There, the government had a similar argument as in Moalin, which the Court thoroughly rebuffed: it argued that an officer could have followed the defendant the whole time without violating any constitutional rights. In Moalin, that’s analogous to saying that the government could have accessed any individual’s phone records without any problem, and therefore, with the help of new technology, it should be able to access every record. Five justices held (in minority and concurring opinions) that continual tracking of a single person over the course of 28 days, through GPS tracking, violated a person’s reasonable expectation of privacy, simply because people expect such comprehensive surveillance to be improbable based on cost to law enforcement alone. More on this important story@
http://arstechnica.com/doj-if-we-can-track-one-american-we-can-track-all-americans/
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