United States v. Moalin
The Fourth Amendment prohibits unreasonable government searches and seizures, and courts have held that generally a warrant based on probable cause should be required to conduct a search or seizure. The Foreign Intelligence Surveillance Act, 50 U.S.C. § 1861, previously authorized the government to collect business records relevant to a national security investigation; under this authority, the NSA was collecting all telephone call detail records (metadata) from major US service providers. The defendant, Basaaly Moalin, was convicted following the government's identification of him through the NSA Metadata program. Mr. Moalin has challenged both the legal basis and the constitutionality of the NSA Metadata program.
- Privacy Board Supports End of NSA Call Record Program: The Privacy and Civil Liberties Oversight Board has issued a report emphasizing the minimal value of the NSA's call details records program. The Board recommended the end of the program, which the NSA suspended last year after concerns about compliance with legal standards established in the US Freedom Act. According to the PLCOB report, the government spent $100 million on the program, yet opened only one non-duplicative investigation. EPIC recently joined 44 civil liberties organizations in backing the end of the NSA surveillance program. In 2013, EPIC filed a petition with the U.S. Supreme Court, In re EPIC, challenging the lawfulness of the NSA's bulk collection of American's telephone records. (Feb. 27, 2020)
- Reports - NSA Call Record Program Shut Down: The National Security Agency has reportedly ended the controversial collection of Americans' phone records. The USA Freedom Act limited the NSA's bulk collection program. However, the NSA has acknowledged compliance problems and doubts remain about renewal of the program later this year. Now, a senior Hill aide has said the NSA "hasn't actually been using it for the past six months" and it is not clear "that the administration will want to start that back up." In 2013, EPIC filed a petition with the U.S. Supreme Court, challenging the lawfulness of the program. EPIC and a coalition have since called attention to the NSA's failure comply with the requirements of the Freedom Act. EPIC previously called for an end to the phone record collection program. (Mar. 5, 2019) More top news »
- In seizing the telephony metadata of Moalin, did the government act beyond the authority granted to it by 50 U.S.C. §1861?
- Did the government violate Appellants’ First and Fourth Amendment rights by seizing the personal metadata of Moalin (and millions of other Americans) and using it to pursue this criminal case?
- Were Appellants deprived of their right to access and present exculpatory evidence regarding the investigation of Moalin in the early 2000's that concluded he was not involved in terrorism?
- Did the district court properly exclude evidence that Moalin was opposed to al-Shabaab because the proffered evidence was from 2009 and the indictment charged 2007-08 acts? Did the district court properly deny Appellants’ motion to allow the videotaped deposition of a witness with exculpatory evidence? Did the district court allow unduly prejudicial and irrelevant material in allowing the government to present evidence about the “Black Hawk Down” incident when it was factually unrelated to any of the charges?
- Did sufficient evidence support Issa Doreh’s convictions?
The Criminal Case
The defendants in this case were indicted in June of 2012 on five counts related to providing financial support to al-Shabaab, a Somali militia group that was designated as a Foreign Terrorist Organization by the U.S. State Department on February 26, 2008. During the lower court proceedings, the defendants filed motions to suppress evidence collected pursuant to warrants and electronic surveillance orders issued under the Foreign Intelligence Surveillance Act, which the court denied. The defendants also requested that their security-cleared counsel be granted access to pertinent FISA applications and related materials in order to prepare their legal and constitutional defenses. The defendants were ultimately convicted by a jury on February 22, 2013.
Following the conviction, it was revealed in June 2013 that the National Security Agency (NSA) had been collecting all domestic and international telephone metadata from major US providers for more than ten years. During congressional hearings before the House Permanent Select Committee on Intelligence following the Snowden revelations, the Deputy Director of the FBI specifically cited the Moalin case as an example of an investigation where the NSA Metadata program had been used to identify the suspect. The defendants subsequently filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 on November 14, 2013, based on the NSA revelations and the government's failure to produce evidence related to the pertinent FISA court applications and materials. In particular, Mr. Moalin argued that the FBI had only reopened his case in 2007 as a result of a tip generated by the NSA Metadata program./p>
The court denied the defendants' motion for a new trial. The defendants subsequently filed an appeal to the Ninth Circuit, which is currently pending.
The NSA Metadata Program
The NSA Metadata program, as it was revealed in June 2013, involved orders issued by the Foreign Intelligence Surveillance Court (FISC) under Section 215 of the USA PATRIOT Act (50 U.S.C. § 1861) to Verizon and other major U.S. telephone providers. These orders required the companies to produce to the NSA, on an ongoing basis, all telephone metadata (including for local and domestic calls).
Section 215 provides that FBI director may make "application for an order requiring the production of any tangible things" for an "investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities" and that each application shall include "a statement of facts showing that there are reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation." (emphasis added). The application can be submitted to a FISC judge, who "shall enter" the order if she finds that the application meets the requirements.
Following the Snowden revelations, it was discovered that the U.S. Government and FISC judges had interpreted Section 215 to permit the collection of all telephone metadata from major U.S. providers. In particular, the Government had argued (and the FISC judges held) that all telephone metadata records are "relevant" to the ongoing investigation(s) into foreign terrorist groups. EPIC and other groups subsequently filed petitions and cases challenging this interpretation of Section 215.
The USA FREEDOM Act
With the Section 215 authorities scheduled to sunset on June 1, 2015, Congress was divided over reform proposals in the USA FREEDOM Act (and other similar bills) on the one hand, and proposals to simply renew the existing authorities on the other. Ultimately, Congress allowed the Section 215 authorities to lapse briefly until they passed the USA FREEDOM Act in June 2, 2015. The Freedom Act amended the FISA to prohibit bulk collection of telephone metadata and other records, and also established new transparency and accountability rules for the FISC. Under the revised provisions, the NSA can request metadata related to a particular telephone number when they have a "reasonable articulable suspicion" that it is connected to terrorist activities.
EPIC advocates for strong constitutional limitations on domestic and electronic surveillance. EPIC has a particular interest in the NSA Metadata Program, having brought the first challenge in the Supreme Court, In re EPIC, 134 S. Ct. 638 (2013), and having testified before Congress on the need to limit the scope of the agency’s surveillance activities. EPIC has also recently submitted an amicus brief in Smith v. Obama, No. 14-35555 (9th Cir.), a case currently pending before this Court, arguing that the court should not extend the third party doctrine to modern metadata because the factual premises underlying Smith v. Maryland no longer apply. EPIC routinely participates as amicus curiae before federal and state appellate courts in cases involving emerging privacy and electronic surveillance issues. See, e.g., Riley v. California, 134 S. Ct. 2473 (2014); Clapper v. Amnesty Int’l USA, 133 S.Ct. 1138 (2013); United States v. Jones, 132 S.Ct. 945 (2012); United States v. Ganias, No. 12-240 (2d Cir.); In re National Security Letter, Nos. 13-15957 & 13-16731 (9th Cir.); In re US Application for CSLI, 724 F.3d 600 (5th Cir. 2013); State v. Earls, 70 A.3d 630 (N.J. 2013); Commonwealth v. Connolly, 913 N.E.2d 356 (Mass. 2009).
U.S. Court of Appeals for the Ninth Circuit, No. 13-50572
- Appellants' Opening Brief (Oct. 29, 2015)
- Brief of Amici Curiae Brennan Center for Justice, ALA, EPIC, Freedom to Read Foundation, NACDL, Ninth Circuit Federal and Community Defenders, and RCFP in Support of Appellants (Nov. 5, 2015)
- Appellee's Answering Brief (Apr. 2016)
U.S. District Court for the Southern District of California, No. 10-cr-4246
- Amended Order Denying Motion for New Trial (Nov. 18, 2013)
- Peter Bergen, Giant NSA Fishing Expedition Nets a Minnow, CNN (June 1, 2015)
- Bruce Schneier, Basaaly Moalin: The One "Terrorist" Caught by Section 215 Surveillance, Schneier on Security (Jan. 26, 2015)
- Sean Vitka, DoJ: If we can track one American, we can track all Americans, ArsTechnica (Oct 12, 2013)
- EPIC: Smith v. Obama
- EPIC: Klayman v. Obama
- EPIC: ACLU v. Obama
- Laura Donohue, Bulk Metadata Collection: Statutory And Constitutional Considerations, 37 Harv. J.L. & Pub. Pol’y 759 (2013)
- Privacy and Civil Liberties Oversight Board, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court (Jan. 23, 2014)
- The President’s Review Group On Intelligence & Communications Technologies, Liberty And Security In A Changing World (Dec. 12, 2013)
- Bruce Schneier, Metadata Equals Surveillance, Schneier on Security (Sept. 23, 2013)
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