It has now been 2.5 years since the first Snowden revelations were published. And in 2015, government surveillance marched on in both large (the National Security Agency) and small (the debut of open source license plate reader software) ways.
Within the past year, Congress voted to end Section 215 of the Patriot Act—but then substituted it with a similar law (USA Freedom Act) that leaves the phone metadata surveillance apparatus largely in place even if the government no longer collects the data directly. Even former NSA Director Michael Hayden admitted in June 2015 that this legal change was pretty minor.
We also saw some notable 2015 reforms as to how federal law enforcement uses stingrays, the invasive cell-phone surveillance devices in use by everyone from local cops all the way up to the FBI, the Department of Homeland Security (DHS), and the Internal Revenue Service (IRS). The Department of Justice (the parent agency of the FBI) and DHS both announced new policies that require the agencies to get a warrant prior to deploying the snooping device.
And in October 2015, America’s most populous state implemented the California Electronic Communications Privacy Act. Among other reforms, this act imposed a warrant requirement for the state’s cops when using a cell-site simulator. Other states that already have similar laws include Washington, Virginia, Minnesota, and Utah. But perhaps 2015's most notable surveillance happenings took place in the court room. Last year, we summarized five cases and trumpeted: “If the Supreme Court tackles the NSA in 2015, it’ll be one of these five cases.” Exactly zero of the cases we profiled got anywhere close to the nine justices. In short, the rise of surveillance tech and the glacial pace of surveillance legislation proves the old adage: technology moves at a lightning pace, but the wheels of justice can turn frustratingly slowly.
Luckily, 2016 may contain a number of equally, if not more important, cases that are currently sitting at the appellate level, meaning these decisions may even file to be heard by the Supreme Court. Our list of five cases to watch in 2016 includes a handful of criminal suspects who were told about government surveillance used against them after their convictions. Beyond that shared detail, the cases can wildly vary. One man was convicted of plotting to blow up a 2010 Christmas tree lighting ceremony in Portland, Oregon; another case centers around dozens of fast-food robberies.
Happy Holidays
Case name: United States v. MohamudLet's start with the Christmas tree. United States v. Mohamud involves a Somali-American who is accused of trying to blow up a 2010 lighting ceremony in Portland. Undercover FBI agents posed as jihadis and presented Mohamud with the means to conduct the operation, which turned out to be wholly bogus. Mohamed Osman Mohamud was eventually found guilty and sentenced to 30 years in prison.
Status: Appeal pending in 9th Circuit Court of Appeals
But after the conviction, the government disclosed that it used warrantless surveillance under Section 702 of the FISA Amendments Act. Seeing this, Mohamud’s legal team attempted to re-open the case—but the judge denied their motion. Mohamud's defense lawyers continue to raise this issue on appeal.
As Stephen Sady, Mohamud’s attorney, wrote in the May 2015 appellate brief to the 9th Circuit:
For the contents of Americans’ communications, any balancing of interests has already been performed by the Constitution: a particularized warrant, based on probable cause, is necessary for the government to collect and read the content of, or listen to, Americans’ private conversations. The § 702 programs are unprecedented in terms of the broad scope of the collections and the lack of any particularized suspicion to support the massive acquisition and retention of Americans’ communications.Federal prosecutors countered by saying that there is no misuse of Section 702 in this case. As they argued:
Section 702 provides that targeting procedures must be “reasonably designed” to “ensure that any acquisition authorized under [the certification] is limited to targeting persons reasonably believed to be located outside the United States” and to “prevent the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States.” See 50 U.S.C. § 1881a(d)(1). The FISC has repeatedly held that collection pursuant to the Section 702 targeting procedures meets these requirements and is reasonable under the Fourth Amendment.The case represents the thorny nexus between law enforcement standards and national security, where different rules of evidence and disclosure apply. Although Mohamud is accused of terrorism, he is being tried in open civilian court as a criminal.
Sady has until February 29, 2016 to file his reply—oral arguments will likely follow sometime later in the year.
Ineffective counsel doesn't even describe it
Case name: United States v. HasbajramiSimilar to Mohamud, this case involves a United States person (citizen or legal resident) accused of attempting to provide support for terrorism-related activities. According to the government, Agron Hasbajrami, an Albanian citizen and Brooklyn resident, traded e-mails with a Pakistan-based terror suspect back in 2011. The terror suspect claimed to be involved in attacks against the US military in Afghanistan. After he was apprehended, Hasbajrami pleaded guilty to attempting to provide material support to terrorists in 2013. Federal prosecutors laid out the details in a press release following his sentencing hearing:
Status: Appeal pending in 2nd Circuit Court of Appeals
Hasbajrami sent the individual more than $1,000 to support the jihadist cause. Then, in pursuit of his goal to engage personally in violent jihad, Hasbajrami arranged to meet the individual in the Federally Administered Tribal Area of Pakistan (the “FATA”). In one e-mail message, Hasbajrami stated that he wished to travel abroad to “marry with the girls in paradise,” using jihadist rhetoric to describe his desire to die as a martyr.After he pleaded guilty, the government informed Hasbajrami that it had used Section 702 surveillance against him. Thus, the case was re-opened. That fact is notable, as many cases that have tried to fight surveillance have fallen down for lack of standing. Hasbajrami's case is different, however, because he can definitively prove that he was spied upon by the government.
As the case was nearing trial by mid-2015, Hasbajrami pleaded guilty a second time. But shortly thereafter, he moved to withdraw the plea again. In a handwritten letter to the judge dated July 20, 2015, he wrote:
No leg to stand on
Case name: Wikimedia v. NSASimilar to other anti-surveillance cases, Wikimedia v. NSA targets the agency's “upstream” setup where the NSA grabs data directly off of fiber optic cables. In its civil complaint filed in March 2015, Wikimedia and the various other groups suing the NSA allege that the government is engaged in illegal and unconstitutional searches and seizures of these groups' communications. In October 2015, US District Judge T.S. Ellis III dismissed the case, finding that Wikimedia and the other plaintiffs had no standing and could not prove that they had been surveilled. That action largely echoed a previous Supreme Court decision, the 2013 case of Clapper v. Amnesty International. This time, Judge Ellis found that there is no way to definitively know if Wikimedia, which publishes Wikipedia, is being watched. As he wrote in his memorandum opinion:
Status: Appeal pending in 4th Circuit Court of Appeals
Plaintiffs' argument is unpersuasive, as the statistical analysis on which the argument rests is incomplete and riddled with assumptions. For one thing, plaintiffs insist that Wikipedia's over one trillion annual Internet communications is significant in volume. But plaintiffs provide no context for assessing the significance of this figure. One trillion is plainly a large number, but size is always relative. For example, one trillion dollars are of enormous value, whereas one trillion grains of sand are but a small patch of beach.Since the June 2013 Snowden revelations, it has been difficult for legal challenges filed against government surveillance to advance in the courts. But Wikimedia and its co-plaintiffs are still appealing—briefs are due within the coming months.
…
As already discussed, although plaintiffs have alleged facts that plausibly establish that the NSA uses Upstream surveillance at some number of chokepoints, they have not alleged facts that plausibly establish that the NSA is using Upstream surveillance to copy all or substantially all communications passing through those chokepoints. In this regard, plaintiffs can only speculate, which Clapper forecloses as a basis for standing.
No more third-party doctrine?
Case name: United States v. GrahamWhile all the previous cases that we’ve addressed have to do with large, federally driven government surveillance, more garden-variety snooping persists: like getting cell-site location information (CSLI) without a warrant.
Status: En banc appeal pending in 4th Circuit Court of Appeals
This case dates back to February 5, 2011 when two men robbed a Burger King and a McDonald’s in Baltimore—10 minutes later, they were caught and cuffed by Baltimore City Police officers. Eventually, Aaron Graham and Eric Jordan were charged with 17 federal counts of interstate robbery, including a pair of fast food robberies and another one at a 7-Eleven. They also received charges for brandishing a firearm in furtherance of the crime.
A Baltimore City Police Detective first sought and obtained a search warrant for the two cell phones recovered during a search of the getaway car. Prosecutors later obtained a court order (a lesser standard than a warrant) granting disclosure of the defendants’ CSLI data for various periods totaling 14 days when the suspects were believed to have been involved in robberies. The government next applied for (and received) a second application to another magistrate judge for a new set of CSLI data, covering a period of July 1, 2010 through February 6, 2011 (221 days).
In court, the defendants argued in a motion to suppress this evidence that “the privacy intrusions available through this type of technology are far-reaching and unconstitutional—allowing the government to retroactively track or survey a suspect through his cellular telephone, a device he likely carries with him at all hours of the day and to constitutionally protected places such as his home or church.” A district judge agreed with the government’s argument under the classic “third-party doctrine,” finding that because the men voluntarily disclosed their own location to their mobile carrier via their phones, they did not have a reasonable expectation of privacy. The defendants’ motion to challenge this evidence was denied.
In August 2012, Graham and Jordan were found guilty on nearly all counts. They were sentenced to 147 years in prison and 72 years, respectively. By June 2013, appellate lawyers Meghan Suzanne Skelton and Ruth Vernet appealed to the 4th Circuit Court of Appeals. The duo argued:
Here, the government exploited new technology to access private information that was otherwise unavailable without a warrant. It obtained location information for more than 36,000 calls and text messages, retroactively learning where the defendants were over 221 nights and days, and did so without a warrant, without demonstrating probable cause, and without establishing the presence of any exception to the Fourth Amendment’s warrant requirements. (JA 253.) The government intruded upon the defendants’ subjective and objectively reasonable expectations of privacy when it tracked the defendants using 221 days worth of CSLI. Accordingly, this was an unconstitutional warrantless search.In August 2015, the appellate court found Skelton and Vernet’s arguments persuasive, crucially tossing aside the oft-relied-upon third-party doctrine. As the appellate judges wrote:
These precedents do not categorically exclude third-party records from Fourth Amendment protection. They simply hold that a person can claim no legitimate expectation of privacy in information she voluntarily conveys to a third party. It is that voluntary conveyance—not the mere fact that the information winds up in the third party’s records—that demonstrates an assumption of risk of disclosure and therefore the lack of any privacy.The government asked the court to rehear the case en banc (where all 15 judges, rather than a standard three-person panel, hear it). Oral arguments are scheduled for March 2016.
We decline to apply the third-party doctrine in the present case because a cell phone user does not “convey” CSLI to her service provider at all—voluntarily or otherwise—and therefore does not assume any risk of disclosure to law enforcement.
If the existing 4th Circuit decision is upheld, Graham would likely be a strong candidate for the Supreme Court. In such a situation, that upheld decision would create a split with the 11th Circuit in a related case, US v. Davis.
Speaking of notable cases to watch in 2016...
Aurich Lawson
Don't forget about Dread Pirate Roberts
As an honorable mention for cases that we’re following in 2016, we’ll also include the forthcoming appeal of Ross Ulbricht.While Ulbricht was not subjected to any phone metadata surveillance under Section 215 of the Patriot Act or Section 702 of the FISA Amendments Act, he was certainly surveilled by various federal agencies including the FBI, the Department of Homeland Security, and the Internal Revenue Service. The young Texan was convicted as being Dread Pirate Roberts, the creator of the online drug market Silk Road in February 2015. Ulbricht was sentenced in May 2015 to life in prison, despite emotional pleas from his family and friends for a lesser sentence. At his sentencing hearing, Ulbricht even pleaded himself for leniency. "I wish I could go back and convince myself to take a different path... If given the chance, I would never break the law again."
US District Judge Katherine Forrest had none of it. "Silk Road's creation showed that you thought you were better than the law," she said.
Coincidentally, Ulbricht's lawyer, Joshua Dratel, also represents Hasbajrami.
Ulbricht’s appeal, in the 2nd Circuit Court of Appeals, is due January 12, 2016.
source: http://arstechnica.com/tech-policy/2016/01/in-2016-terror-suspects-and-7-eleven-thieves-may-bring-surveillance-to-supreme-court/
Cyrus Farivar / Cyrus is the Senior Business Editor at Ars Technica, and is also a radio producer and author. His first book, The Internet of Elsewhere, was published in April 2011.@cfarivar on Twitter
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