EFF and ACLU Ask Appeals Court to Rule that Use of NSA’s Warrantless Surveillance in a Criminal Case Is Unconstitutional
With the passage of the USA Freedom Act, we’ve gained important reforms of the intelligence community, but there’s still a lot to do, including reining in the NSA’s warrantless mass surveillance of Americans’ Internet communications under Section 702 of the FISA Amendments Act (FAA). That’s why EFF yesterday filed an amicus brief along with the ACLU and the ACLU of Oregon in United States v. Mohamud, a criminal case currently on appeal to the U.S. Court of Appeals for the Ninth Circuit involving Section 702 surveillance.
Mohammed Mohamud was convicted in 2012 of plotting to bomb an Oregon Christmas tree lighting ceremony, but as we explained last year, the government only notified him that they had used Section 702 in his case after he was convicted. With this new information, Mohamud’s lawyers argued that the surveillance was unconstitutional and asked for a new trial, but the judge denied these motions.
Now the case is on appeal to the Ninth Circuit, and Mohamud is again arguing that warrantless surveillance of Americans under Section 702 is unconstitutional. Both EFF and the ACLU have lawsuits that challenge NSA’s “Upstream” surveillance—conducted under Section 702—involving tapping into the fiber optic cables that make up the Internet backbone and collecting and searching Americans’ communication. EFF’s case, Jewel v. NSA, will be appealed to the Ninth Circuit shortly, while the ACLU’s, Wikimedia v. NSA, was recently filed in a Maryland federal district court.
In Mohamud, we don’t know what Section 702 surveillance program the government used: Upstream, or PRISM, which involves collection of data directly from Internet providers, or some other still-unknown program. We do know that Section 702 surveillance poses an immense threat to the privacy of Americans and Internet users around the world. Section 702 allows the government to target foreigners’ Internet communications, but we’ve learned that the NSA “incidentally" collects large numbers of Americans’ foreign communications, as well as tens of thousands of purely domestic communications. So long as the NSA does not intentionally target Americans, it can collect their communications with foreigners and then retain and look through those communications—so-called backdoor searches. In fact, in Mohamud the government has previously made the dangerous and unsupported argument that talking to a foreigner deprives Americans of their Fourth Amendment rights. Finally, the government provides almost no protections for the privacy of non-Americans for the surveillance it conducts under Section 702.
For all these reasons, we need to take the momentum we’ve gained from the passage of USA Freedom and move on to additional reforms, including mass surveillance under Section 702. A first step would be rulings from the courts in Mohamud, Jewel and Wikimedia finding that this surveillance is unconstitutional.