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 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.
Jimm Phillips
Jimm Phillips, Associate Editor, covers telecommunications policymaking in Congress for Communications Daily. He joined Warren Communications News in 2012 after stints at the Washington Post and the American Independent News Network. Phillips is a Maryland native who graduated from American University. You can follow him on Twitter: @JLPhillipsDC
President Donald Trump touched briefly on telecom policy during his Thursday speech accepting the Republican Party’s nomination for a second term, as expected (see 2008270051). Trump promised if he’s reelected in November the U.S. “will win the race to 5G, and build the world's best cyber and missile defense.” The Trump campaign Friday again listed 5G development as a second-term agenda item in connection with building a “National High-Speed Wireless Internet Network,” which Trump didn’t speak about Thursday. Officials compared the language, first released Aug. 23 (see 2008240056), to an earlier Rivada Networks proposal for the U.S. government to make spectrum being reserved for 5G available to carriers at wholesale. The Trump campaign spoke in 2019 in favor of the 5G wholesale concept but later walked back the comment amid perceptions that was a form of nationalization (see 1903040058). Trump “will be sharing additional details about his plans through policy-focused speeches on the campaign trail” in the coming weeks, the campaign said. A National Security Council official proposed in 2018 the U.S. build a national 5G network, drawing opposition from across the political spectrum (see 1801290034). Other Republican National Convention speakers, including Trump’s youngest daughter, Tiffany, criticized social media and other tech companies.
President Donald Trump’s reelection campaign appears unlikely to deviate in any substantive way from the administration’s existing stances on 5G and broadband policy, despite questions about whether language in an agenda outline released earlier this week (see 2008240056) was a callback to past nationalization proposals. Democratic presidential nominee Joe Biden cited broadband and other infrastructure during the party’s convention last week as part of “a new foundation for economic growth" (see 2008210001).
House Republicans are aware that the Food and Drug Administration missed its statutory deadline Aug. 18 under the FDA Reauthorization Act for releasing for public comment proposed rules on a new category of over-the-counter hearing aids (see 2008200024), said an aide. “We also understand FDA has been laser-focused on responding to the COVID-19 pandemic and protecting public health,” said the aide. “We are in touch with FDA on a host of issues, and we’re hopeful proposed rules will be released for public comment soon.”
Some lawmakers and advocates believe Capitol Hill’s inability to agree on an additional COVID-19 aid bill that includes broadband funding presents an opening for the issue to become a focus during the presidential and congressional campaigns this fall, they told us. Congress provided some related funding in March via the Coronavirus Aid, Relief and Economic Security Act (see 2003250046).
Lawmakers can’t undo FCC approval of Ligado via a Congressional Review Act resolution, GAO said last week. Senate Armed Services Committee Chairman Jim Inhofe, R-Okla., and ranking member Jack Reed, D-R.I., asked for the study. The House and Senate Armed Services committees passed FY 2021 National Defense Authorization acts (HR-6395/S-4049) with anti-Ligado language (see 2007210060). The CRA can only be used to overturn agencies’ actions that constitute a rule. The Administrative Procedure Act definition doesn’t cover this decision because licensing actions are an order, GAO said. “License modifications applicable to all regulated entities may be made through a rulemaking given the policy nature and across-the-board applicability, but individual actions must be evaluated through adjudication, which is what FCC did,” the office said. “The resultant action … falls within the APA definition of order and not rule." The office of Sen. Jim Inhofe, who tied up Commissioner Mike O'Rielly's nomination over the matter, didn’t comment Friday.
President Donald Trump’s administration is believed nearly ready to name NTIA senior adviser Carolyn Roddy as President Donald Trump’s nominee to replace FCC Commissioner Mike O’Rielly, potentially as soon as the next few days, communications sector officials and lobbyists told us. Behind-the scenes wrangling between the Trump administration and Senate GOP leaders over O'Rielly's revoked renomination continued this week, with prospects for a resolution uncertain, officials and lobbyists said. Trump withdrew the renomination last week (see 2008030072). Senate Majority Whip John Thune of South Dakota and other Republicans have pressed Trump to reinstate O'Rielly (see 2008060062).
President Donald Trump’s administration said Monday it reached agreement with DOD to allow commercial sharing of spectrum in the 3450-3550 MHz band. NTIA reported last month that spectrum is the best candidate from the larger 3100-3550 MHz band for sharing. The White House said it believes the FCC will be able to auction sharing rights for the 100 MHz beginning in December 2021, with commercial operations on the band beginning in mid-2022.
Senate Majority Leader Mitch McConnell of Kentucky and other GOP lawmakers are pressing President Donald Trump to reverse course and reinstate his renomination of FCC Commissioner Mike O’Rielly, officials told us. Trump abruptly withdrew O’Rielly’s renomination Monday (see 2008030072). The decision drew significant scrutiny amid perceptions it’s tied to O’Rielly’s reluctance to say he wants the FCC to clarify its rules in response to Trump’s May executive order on Communications Decency Act Section 230. Senate Republicans are making their case for O’Rielly partly because they think it would be difficult for the Senate to confirm a replacement this year (see 2008040061).
President Donald Trump’s withdrawal of renomination of FCC Commissioner Mike O’Rielly (see 2008030072) is getting considerable scrutiny on Capitol Hill and within the communications industry. Some officials suggested Trump’s action will have repercussions for commission politics and policymaking heading into 2021. O’Rielly’s removal will likely make it very difficult for the Senate to confirm a nominee this year to replace him, given the limited amount of time left on the legislative calendar before this Congress ends, lawmakers and lobbyists said in interviews through Tuesday.