9th Circuit Rules Defunct Metadata Collection 'May Have Violated' Constitution
NSA’s now-shuttered Patriot Act Section 215 bulk metadata collection program “may have violated the Fourth Amendment,” but its unconstitutionality doesn’t undermine 2013 convictions against Basaaly Moalin and three other Somali men for fundraising for terrorist group Al-Shahaab, ruled the 9th…
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Circuit Court of Appeals Wednesday. The 2015 Uniting and Strengthening America by Fulfilling Rights and Ensuring Effective Discipline Over Monitoring (USA Freedom) Act formally ended the program (see 1506030039). “NSA collected Moalin’s (and millions of other Americans’) telephony metadata on an ongoing, daily basis for years," wrote Judge Marsha Berzon for the panel, which included Judges Jacqueline Nguyen and Jack Zouhary. "Moalin likely had a reasonable expectation of privacy in his telephony metadata." Defendants should have got more notice government intended “to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities,” the ruling said. “We do not decide whether the government failed to provide any required notice in this case because the lack of such notice did not prejudice the defendants.” The metadata collection “did not taint the evidence introduced by the government at trial,” the panel said. Berzon noted that former Booz Allen intelligence contractor Edward Snowden’s leaks on the NSA program (see 1306120060) contributed to its demise. She noted then-FBI Deputy Director Sean Joyce cited the Moalin case as an example of how the metadata collection was aiding in combating terrorism (see 1308010032) but countered “that impression is inconsistent with the contents of the classified record.” “We’re disappointed in the result, especially since more recent disclosures regarding misconduct regarding [the Foreign Intelligence Surveillance Act] FISA has further revealed how the lack of transparency in the entire process compromises individual rights of those charged with crimes as well as those never charged -- including those Americans whose telephone metadata was collected and retained," said Moalin lawyer Joshua Dratel. "The lack of transparency was prejudicial to our ability to challenge the FISA surveillance.” The American Civil Liberties Union believes the 9th Circuit ruling “is a victory for our privacy rights,” though “we are disappointed that, having found the surveillance of Mr. Moalin unlawful, the court declined to order suppression of the illegally obtained evidence in his case,” said National Security Project Senior Staff Attorney Patrick Toomey. “The ruling makes plain that the NSA's bulk collection of Americans' phone records violated the Constitution.” Moalin’s lawyers are "evaluating the options for further appeal,” Toomey said. DOJ didn’t comment.