First Appeals Court Hearing to Address Mass Surveillance

ACLU Challenges Warrantless "Backdoor" Searches

July 6, 2016 - For the first time, a federal appeals court heard oral argument on the merits in a case challenging the NSA’s warrantless surveillance of Americans’ international communications conducted under Section 702 of FISA, which allows the NSA to engage in warrantless surveillance of Americans who communicate with tens of thousands of targets located abroad.

In 2012, Mohammed Mohamud, a Somalia-born naturalized U.S. citizen, was convicted of plotting to bomb a Christmas tree lighting ceremony in Portland, Oregon. After his conviction, the government belatedly notified Mohamud that it had relied on Section 702 surveillance to obtain his communications without a warrant in the course of its investigation. Mohamud argued that the resulting evidence should have been suppressed and asked for a new trial. His challenge to the surveillance is now on appeal.

The American Civil Liberties Union, American Civil Liberties Union of Oregon, and the Electronic Frontier Foundation have filed a friend-of-the-court brief in the case, U.S. v. Mohamud, and were granted time to argue at the hearing today. The government has refused to disclose which particular program it used in Mohamud’s case, but the NSA relies on Section 702 to operate both the PRISM program and Upstream surveillance. PRISM involves the warrantless collection of user communications from major internet companies, like Google, Apple, and Facebook. Upstream surveillance, by contrast, involves the NSA’s searching of traffic flowing across the internet backbone inside the U.S. — the physical infrastructure that carries Americans’ online communications with each other and with the rest of the world. In the course of Upstream surveillance, the NSA copies and combs through vast amounts of internet traffic with the assistance of telecommunications companies, looking for key terms, called “selectors,” that are associated with its many targets.

Not only does the government collect immense quantities of Americans’ communications using Section 702, but it stores those communications in databases that can be searched by FBI agents around the country using the names, email addresses, and phone numbers of individual Americans. These so-called “backdoor searches” transform warrantless surveillance supposedly directed at foreigners into a tool for investigating U.S. citizens and residents, including in ordinary criminal cases.

The ACLU’s lawsuit challenging Upstream surveillance, Wikimedia v. NSA, is currently pending before the Fourth Circuit Court of Appeals. EFF’s lawsuit, Jewel v. NSA, is pending before the federal district court in San Francisco.

“The surveillance challenged in this case has implications for the privacy of all Americans. Section 702 gives the government virtually unfettered access to the international phone calls and emails of U.S. citizens and residents,” said ACLU Staff Attorney Patrick Toomey, who will be arguing before the three-judge panel. “It has become increasingly apparent that the NSA and FBI have implemented the law in the broadest possible way, and that the rules that supposedly protect the privacy of innocent people in fact do the opposite. Surveillance conducted under this statute is unconstitutional.”

 

The ACLU/EFF friend-of-the-court brief is at:

https://www.aclu.org/legal-document/us-v-mohamud-amicus-brief

 

The government’s brief is at:

https://www.aclu.org/legal-document/us-v-mohamud-government-response-brief

 

Mohamud’s brief is at:

https://www.aclu.org/legal-document/us-v-mohamud-defendants-reply-brief