The Supreme Court announced today that it will not review a lower court’s ruling in United States v. Mohamud, which upheld warrantless surveillance of an American citizen under Section 702 of the Foreign Intelligence Surveillance Act. EFF had urged the Court to take up Mohamud because this surveillance violates core Fourth Amendment protections. The Supreme Court’s refusal to get involved here is disappointing.
Using Section 702, the government warrantlessly collects billions of communications, including those belonging to a large but unknown number of Americans. The Ninth Circuit Court of Appeals upheld this practice only by creating an unprecedented exception to the Fourth Amendment. This exception allows the government to collect Americans’ communications without a warrant by targeting foreigners outside the United States, known as “incidental collection.”
We wish the Supreme Court had stepped in to fix this misguided ruling, but its demurral shouldn’t be taken to mean that Section 702 surveillance is totally fine. Some of the most controversial aspects of these programs have never been reviewed by a public court, let alone the Supreme Court. That includes “backdoor searches,” the practice of searching databases for Americans’ incidentally collected communications. Even in deciding Mohamud, the Ninth Circuit refused to address the constitutionality of backdoor searches.
Thorough judicial review of Section 702 surveillance remains one of EFF’s key priorities. In addition, as Congress nears a vote on the statute’s reauthorization, we’re pushing for legislative reforms to eliminate backdoor searches and other unconstitutional practices.