No 17-5126 IN THE Supreme Court of the United States MOHAMED OSMAN MOHAMUD Petitioner v UNITED STATES Respondent ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF A PPEALS FOR THE NINTH CIRCUIT BRIEF OF AMICI CURIAE ELECTRONIC FRONTIER FOUNDATION CENTER FOR DEMOCRACY TECHNOLOGY AND NEW AMERICA'S OPEN TECHNOLOGY INSTITUTE IN SUPPORT OF PETITIONER A NDREW CROCKER Counsel of Record MARK RUMOLD JAMIE WILLIAMS ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco California 94109 415 436-9333 andrew@eff org Counsel for Amici Curiae 274755 A 800 274-3321 o 800 359-6859 i TABLE OF CONTENTS Page TABLE OF CONTENTS i TABLE OF CITED AUTHORITIES iii STATEMENT OF INTEREST 1 INTRODUCTION AND SUMMARY OF THE ARGUMENT 1 ARGUMENT 2 I Under Section 702 the Government conducts warrantless surveillance of billions of international communications including the communications of Americans 2 II The constitutionality of sur veillance conducted under Section 702 is a question of exceptional importance 9 A Section 702 sur veillance violates the Fourth Amendment 10 B Section 702 violates Article III 16 III The Ninth Circuit's decision was incorrect and could have far reaching consequences for the privacy of international communication 19 A The court improperly relied on the incidental overhear rule to create a new exception to the wa r rant requirement 19 ii Table of Contents Page B The cour t misapplied the thirdparty doctrine in conflict with this Court's precedent 22 C The court ignored the Government's w ide sp r e a d u s e of b a c kdo or sea rches to quer y and examine the communications of Americans including Mr Mohamud 23 D The court erred by concluding that Section 702 is consistent with Article III because it resembles review of search warrants and wiretap applications 25 CONCLUSION 26 APPENDIX 1a iii TABLE OF CITED AUTHORITIES Page Cases Redacted 2011 WL 10945618 FISC Oct 3 2011 5 18 Berger v New York 388 U S 41 1967 12 14 20 Brigham City Utah v Stuart 547 U S 398 2006 14 Clapper v Amnesty Int'l USA 568 U S 398 2013 3 Ex Parte Jackson 96 U S 727 1877 22 23 Heffron v Int'l Society for Krishna Consciousness 452 U S 640 1981 9-10 In re Directives 551 F 3d 1004 FISCR 2008 13 In re Proceedings Required by 702 I of the FISA Amendments Act of 2008 Misc No 08-01 2008 WL 9487946 FISC Aug 27 2008 8 iv Cited Authorities Page In re Production of Tangible Things from Redacted BR 08-13 FISC Mar 2 2009 18-19 In re Sealed Case 310 F 3d 717 FISCR 2002 13 14 17 Katz v United States 389 U S 347 1967 10 23 Maryland v Garrison 480 U S 79 1987 12 Massachusetts v EPA 549 U S 497 2007 16 McDonald v United States 335 U S 451 1948 11 Miller v United States 425 U S 435 1976 22 Mistretta v United States 488 U S 361 1989 16 New Jersey v T L O 469 U S 325 1985 12 Packingham v North Carolina 580 U S 137 S Ct 1730 2017 10 v Cited Authorities Page Sabri v United States 541 U S 600 2004 25 Samson v California 547 U S 843 2006 14 United States v Biasucci 786 F 2d 504 2d Cir 1986 14 United States v Cavanagh 807 F 2d 787 9th Cir 1987 13 14 United States v Donovan 429 U S 413 1977 12 20 21 United States v Duka 671 F 3d 329 3d Cir 2011 13 United States v Figueroa 757 F 2d 466 2d Cir 1985 20 United States v Fruehauf 365 U S 146 1961 25 United States v Graham 824 F 3d 421 4th Cir 2016 23 United States v Kahn 415 U S 143 1974 20 vi Cited Authorities Page United States v Koyomejian 970 F 2d 536 9th Cir 1992 14 United States v Martin 599 F 2d 880 9th Cir 1979 20 United States v Truong 629 F 2d 908 4th Cir 1980 13 United States v Turner 528 F 2d 143 9th Cir 1975 14 United States v United States District Court Keith 407 U S 297 1972 10 12 16 United States v Warshak 631 F 3d 266 6th Cir 2010 10 22 Watson v Buck 313 U S 387 1941 18 19 Statutes 18 U S C 2518 11 17 18 U S C 2510-22 8 50 U S C 1801 3 4 vii Cited Authorities Page 50 U S C 1805 8 11 17 50 U S C 1881a passim 50 U S C 1881c 7 FISA Amendments Act of 2008 Pub L No 110-261 122 Stat 2436 2 Other Authorities Barton Gellman Julie Tate and Ashkan Soltani In NSA-Intercepted Data Those Not Targeted Far Outnumber the Foreigners Who Are Wash Post Jul 5 2014 5 Dustin Volz White House Intel Chiefs Want to Make Digital Spying Law Permanent Reuters Jun 7 2017 7 El i z a b et h G ot e i n Fa i z a Pat e l W h a t We n t Wr o n g w i t h t h e FIS A C o u r t Brennan Center for Justice Mar 2015 17 18 FISA for the 21st Century Hearing Before the S Comm on the Judiciary 109th Cong 2006 statement of NSA Director Michael Hayden 7 Glenn Greenwald No Place to Hide 2014 5 viii Cited Authorities Page James E Pfander Daniel D Birk Article III Judicial Power the Adverse-Party Requirement a n d No n - C o n t e n t i o u s Ju r i s d i c t i o n 124 Yale L J 1346 2015 16 Memorandum Opinion Redacted FISC Aug 30 2013 7 M i n i m i z a t i o n P r o c e d u r e s Us e d by t h e NSA in Connection w ith Acquisitions of Foreign Intelligence Information 15 NSA Slides Explain the PRISM Data-Collection Program Wash Post Jun 6 2013 3 Office of the Director of National Intelligence Statistical Transparency Report Regarding Use of Nati o n al Sec ur ity Auth o r iti es for Calendar Year 2016 Apr 2017 4 Orin Kerr The Surprisingly Weak Reasoning of Mohamud Lawfare Dec 23 2016 21 Privacy and Civil Liberties Oversight Board Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act July 2 2014 passim Sen Ron Wyden Wyden Releases Details of Ba c k d o o r Se a r ch e s of Am e r i c a n s' Communications June 30 2014 23 ix Cited Authorities Page Sharon Goldberg Surveillance without Borders The Traffic Shaping Loophole and Why it Matters The Century Foundation June 22 2017 21 Stephen Vladeck The FISA Court and Article III 72 Wash Lee L Rev 1161 2015 17-18 Wa l t e r F M o n d a l e R o b e r t A S t e i n Caitlinrose Fisher No Longer a Neutral Ma gi str a t e Th e Fo rei gn Int el li gen ce Surveillance Court in the Wake of the War on Terror 100 Minn L Rev 2251 June 2016 9 1 STATEMENT OF INTEREST1 Amici the Electronic Frontier Foundation the Center for Democracy Technology and New America's Open Technology Institute are non-profit organizations working on issues related to civil liberties and technology Representing the interests of technology users in the courts and through legislative and policy advocacy amici ensure that constitutional rights keep pace with changes in law and technology Their individual organizational statements are contained in the Appendix following this brief INTRODUCTION AND SUMMARY OF THE ARGUMENT This case concerns a regime of electronic surveillance unprecedented in our nation's history and unlike anything this Court has countenanced in the past Relying on Section 702 of the Foreign Intelligence Surveillance Act 50 U S C 1881a the Government annually intercepts billions of international communications sent by hundreds of thousands of individuals including Americans It conducts this surveillance inside the United States with advisory approval of Article III judges all without a warrant or anything resembling one 1 As Supreme Court Rule 37 2 a requires amici have provided timely notice to all counsel and all parties consent to the filing of this brief As Supreme Court Rule 37 6 requires amici state that this brief was not authored in whole or in part by counsel for any party and that no person or entity other than amici or their counsel made a monetary contribution to fund this brief's preparation or filing 2 This warrantless surveillance of Americans violates the Fourth Amendment and the advisory role imposed on the Judiciary by Section 702 violates Article III The Ninth Circuit's decision in this case disregarded these significant constitutional defects Instead the court invented a dangerous--and doctrinally unprecedented-- exception to the warrant requirement And it gave short shrift to the novel role Section 702 imposes on the Judiciary Section 702's constitutional infirmities have affected millions of individuals including countless Americans over almost a decade of surveillance conducted under the statute Accordingly amici urge the Court to grant certiorari in order to resolve the significant constitutional issues presented by this case ARGUMENT I Under Section 702 the Government conducts warrantless surveillance of billions of international communications including the communications of Americans Relying on Section 702 the Government conducts warrantless surveillance of vast quantities of international communications entering and leaving the United States-- including communications sent and received by Americans Section 702 codified by the FISA Amendments Act of 2008 FAA Pub L No 110-261 122 Stat 2436 revolutionized and dramatically expanded the Government's foreign intelligence surveillance authorities 3 The statute creat ed a new framework under which the Government could obtain authorization from the Foreign Intelligence Surveillance Court FISC to conduct surveillance targeting the communications of non-U S persons located abroad Clapper v Amnesty Int'l USA 568 U S 398 404 2013 internal citations omitted Where the initial statutory regime for conducting foreign intelligence surveillance in the United States the Foreign Intelligence Surveillance Act FISA 50 U S C 1801 et seq allowed for targeted surveillance with significant judicial involvement Section 702 permits the FISC to review broad programmatic guidelines that the Government intends to use when conducting surveillance in the future This surveillance is carried out inside the United States with the cooperation of major American telecommunication and Internet companies 2 Surveillance conducted under Section 702 reaches every form of modern electronic communication telephone calls emails video calls texts and online chats among others 3 2 The Government conducts Section 702 surveillance in one of two ways First it compels third-party Internet service providers such as Google Yahoo and Facebook to turn over the communications of its customers through a program commonly known as PRISM Second the government cooperates with telecommunication companies like AT T and Verizon to intercept communications in real-time as they flow through the nation's fiber-optic Internet backbone cables All of this surveillance occurs within the United States See Privacy and Civil Liberties Oversight Board Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act July 2 2014 7 https www pclob gov library 702-report pdf hereafter PCLOB Report 3 See NSA Slides Explain the PRISM Data-Collection Program Wash Post Jun 6 2013 http www washingtonpost com wp-srv special politics prism-collection-documents 4 Three aspects of Section 702 surveillance distinguish it from previous foreign intelligence sur veillance practices Section 702 surveillance is alarmingly vast It purposefully sweeps up the communications of Americans without a warrant And the statute mandates only programmatic judicial review detached from the specifics of any particular surveillance application or target 1 Section 702 surveillance is breathtaking in its scope Annually the Government's surveillance encompasses tens of thousands of targets and sweeps in billions of electronic communications including Americans' communications The latitude afforded by the statute drives this sweeping breadth Section 702 permits the Attorney General and the Director of National Intelligence to authorize the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information 50 U S C 1881a a The Government can target any foreigner abroad to obtain foreign intelligence information --a term broadly defined to encompass nearly any information bearing on the foreign affairs of the United States See id 50 U S C 1801 e The Government reported that in 2016 it monitored the communications of 106 469 targets under a single FISC order 4 In 2011 when it monitored approximately 4 Office of the Director of National Intelligence Statistical Transparency Report Regarding Use of National Security Authorities for Calendar Year 2016 Apr 2017 https icontherecord tumblr com transparency odni_transparencyreport_cy2016 5 one-third that number of targets 5 the Government still collected more than 250 million communications 6 Today with nearly three times as many targets the Government likely collects over a billion communications under Section 702 each year 7 Although a substantial number of persons are targeted under Section 702 8 the number of targets belies the true scope of the surveillance A review of a large cache of intercepted conversations analyzed by the Washington Post revealed that the vast majority of account holders subject to surveillance were not the intended surveillance targets but were caught in a net the agency had cast for somebody else 9 The material reviewed by the Post consisted of 160 000 intercepted e-mail and instant message conversations 7 900 documents--including medical records sent from one family member to another 5 Although the government has not released the number of targets from 2011 internal NSA documents show that approximately 35 000 unique selectors were surveilled under PRISM in 2011 See Glenn Greenwald No Place to Hide at 111 2014 http glenngreenwald net pdf NoPlaceToHideDocuments-Compressed pdf documents referenced in book 6 Redacted 2011 WL 10945618 9 FISC Oct 3 2011 7 See PCLOB Report at 116 noting the current number is much higher than the 2011 count 8 PCLOB Report at 33 9 Barton Gellman Julie Tate and Ashkan Soltani In NSA-Intercepted Data Those Not Targeted Far Outnumber the Foreigners Who Are Wash Post Jul 5 2014 https www washingtonpost com world national-security in-nsa-intercepteddata-those-not-targeted-far-outnumber-the-foreigners-whoare 2014 07 05 8139adf8-045a-11e4-8572-4b1b969b6322_story html 6 resumes from job hunters and academic transcripts of schoolchildren --and more than 5 000 private photos 10 In all the cache revealed the daily lives of more than 10 000 account holders who were not targeted but were catalogued and recorded nevertheless 11 The Post estimated that at the Government's rate of targeting annual collection under Section 702 would encompass more than 900 000 user accounts 12 The volume of communications intercepted is far too great for the Government to review--let alone use-- every communication it obtains Many are never viewed by human eyes and simply reside in vast databases of intercepted communications 13 The Government thus casts its international surveillance net widely collecting far more information than it can ever process or use 2 This vast surveillance apparatus inevitably-- and intentionally--sweeps in the communications of Americans As the FISC has observed Section 702 sur veillance results in the Government obtaining substantial quantities of information concerning United States persons and persons located inside the United States who are entitled to Fourth Amendment 10 Id 11 Id 12 Id 13 PCLOB Report at 128-29 7 protection 14 Indeed this is one of the principal aims of the surveillance 15 Although nominally targeted at those overseas 16 each time a U S person communicates with any one of the Government's self-selected targets--targets that may include journalists academics human rights researchers or employees of foreign-owned corporations--the Government collects and stores that communication It is unknown precisely how many Americans are swept up in the Government's surveillance web Despite repeated requests from members of Congress the Government has refused to count or even estimate the substantial quantity of U S persons' communications it collects under Section 702 17 By all accounts however the volume is significant Not only are Americans' communications collected in substantial quantities under Section 702 they 14 Memorandum Opinion Redacted FISC Aug 30 2013 August 30 FISC Order at 24 https www dni gov files documents icotr 702 EFF%2016-CV-02041 HSG %20Doc%20 03%2006 13 17%20--%20REDACTED PDF 15 See FISA for the 21st Century Hearing Before the S Comm on the Judiciary 109th Cong at 9 2006 http 1 usa gov 1kbgHm3 statement of NSA Director Michael Hayden 16 While Section 702 indisputably allows for the collection of A mericans' communications the statute prohibits the intentionally targeting specific U S persons for surveillance under the statute See 50 U S C 1881c a 2 17 Dustin Volz White House Intel Chiefs Want to Make Digital Spying Law Permanent Reuters Jun 7 2017 https www reuters com article us-usa-intelligence-idUSKBN18Y21E 8 are also retained and used in later investigations-- including domestic criminal investigations unrelated to the foreign intelligence purpose for which they were ostensibly collected Collected communications are stored in databases generally for a period of three to five years 18 The Government then searches these vast databases of collected communications--at times using Americans' email addresses or other identifiers to target particular Americans These secondary or backdoor searches allow the Government to target and read the communications of Americans without obtaining a warrant or any specific judicial authorization 19 3 The FISC plays a singular but limited role in overseeing this surveillance--one fundamentally unlike courts' roles in approving search warrants or authorizing surveillance under FISA or Title III 18 U S C 2510-22 As the FISC itself has noted its review under Section 702 is narrowly circumscribed 20 Unlike traditional FISA surveillance the Government is not required to demonstrate probable cause that the target is a foreign power or an agent of a foreign power Compare 50 U S C 1805 a 2 with 50 U S C 1881a Section 702 does not require the Government to tell the FISC the nature or location of its targets See 50 U S C 1881a Nor does it require the Government to identify to the FISC the 18 PCLOB Report at 59 19 PCLOB Report at 55-60 20 See In re Proceedings Required by 702 I of the FISA Amendments Act of 2008 Misc No 08-01 2008 WL 9487946 at 2 FISC Aug 27 2008 9 particular facilities or places at which the electronic surveillance will occur Id Rather on an annual basis the Government submits to the FISC the guidelines it will follow--in the form of targeting and minimization procedures 50 U S C 1881a d e --to conduct surveillance for up to one year Id These procedures form only the general framework of the surveillance program--i e the rules executive branch employees will employ when making future surveillance targeting and retention decisions--and are wholly divorced from any specific application or target See id The FISC reviews these procedures and guidelines for compliance with the statute and the Fourth Amendment 50 U S C 1881a g 2 iv Section 702 thus transformed the FISC into a 'metaarbiter ' approving generally applicable targeting and minimization procedures to apply in future surveillance decisions a far cry from Tile I of FISA and the recommendations of the Church Committee 21 II The constitutionality of surveillance conducted under Section 702 is a question of exceptional importance Certiorari is appropriate in cases like this one where important constitutional issues are presented Heffron v Int'l Society for Krishna Consciousness 452 U S 640 21 Walter F Mondale Robert A Stein Caitlinrose Fisher No Longer a Neutral Magistrate The Foreign Intelligence Surveillance Court in the Wake of the War on Terror 100 Minn L Rev 2251 2267 2276 June 2016 emphasis in original 10 646 1981 accord Supreme Ct R 10 c Surveillance carried out under Section 702 strikes at the heart of the Fourth Amendment's prohibition on unreasonable searches and seizures and the FISC's limited and advisory role in the process violates Article III The Fourth Amendment violations worked by Section 702 against an untold number of Americans cast a pall on international communications and the vast democratic forums of the Internet Packingham v North Carolina 580 U S 137 S Ct 1730 1735 2017 These violations are carried out with the imprimatur of the Judiciary despite the FISC's statutorily limited role These are critical constitutional issues requiring this Court's review A Section 702 surveillance violates the Fourth Amendment Under the Fourth Amendment U S persons have a protected privacy interest in the contents of their communications including telephone calls and emails See Katz v United States 389 U S 347 353 1967 United States v United States District Court Keith 407 U S 297 313 1972 United States v Warshak 631 F 3d 266 288 6th Cir 2010 A warrant is therefore required to search and seize these communications and warrantless searches are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions Katz 389 U S at 357 Section 702 does not require the Government to obtain a warrant based on probable cause Nor can the 11 Government point to a valid exception to the warrant requirement that could justify such a sweeping program Taken as a whole surveillance of U S persons under Section 702 is unreasonable and therefore unconstitutional 1 Surveillance under Section 702 is conducted without many of the familiar safeguards that a warrant provides First Section 702 fails to interpose the deliberate impartial judgment of a judicial officer between the citizen and the police Id citation and internal quotation marks omitted The Fourth Amendment reflects a judgment that t he right of privacy is too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals McDonald v United States 335 U S 451 455-56 1948 But under Section 702 the FISC's role is limited to reviewing general targeting and minimization procedures Every decision relevant to specific surveillance targets is left to the unreviewed discretion of executive branch employees even as these decisions determine privacy protections for countless U S persons Second Section 702 fails to condition surveillance on the existence of probable cause It permits the Government to conduct acquisitions without proving to a court that its surveillance targets are foreign agents engaged in criminal activity or connected--even remotely--with terrorism Compare 50 U S C 1881a with 18 U S C 2518 3 Title III 50 U S C 1805 a 2 FISA It permits the Government to conduct acquisitions without even an administrative determination that its targets fall into any of these categories 12 Third Section 702 fails to restrict the Government's surveillance to instances described with particularity The requirement of particularity is especially great in the case of eavesdropping which inevitably results in the interception of unrelated intimate conversations Berger v New York 388 U S 41 56 1967 Unlike Title III and FISA however Section 702 does not require the Government to identify to any court the individuals to be monitored the facilities telephone lines email addresses or places at which its surveillance will be directed or the particular conversations to be seized United States v Donovan 429 U S 413 427 n 15 1977 Section 702 does nothing to ensure that surveillance conducted under the Act will be carefully tailored Maryland v Garrison 480 U S 79 84 1987 2 Nothing about Section 702 renders the warrant clause inapplicable to the Government's interception of Americans' communications This Court has recognized an exception to the warrant requirement for programmatic searches in those exceptional circumstances in which special needs beyond the normal need for law enforcement make the warrant and probable-cause requirement impracticable New Jersey v T L O 469 U S 325 351 1985 Blackmun J concurring But in Keith this Court expressly rejected the Government's argument that intelligence needs justified dispensing with the warrant requirement in domestic surveillance cases 407 U S at 316-21 The Court's logic applies with equal force to surveillance directed at targets with a foreign nexus--at least when that surveillance sweeps up U S persons' communications as Section 702 surveillance does and is conducted inside 13 the United States as Section 702 surveillance is The mere fact that this surveillance is conducted to acquire foreign intelligence information does not render the warrant and probable-cause requirements unworkable Even if a foreign intelligence exception to the warrant requirement exists--a question this Court has never decided see United States v Truong 629 F 2d 908 913 4th Cir 1980 --the exception is not broad enough to render Section 702 surveillance constitutional Lower courts have approved narrow modifications to the probable cause requirement when considering individualized surveillance under FISA but only where the surveillance in question was directed at foreign powers or their agents and predicated on an individualized finding of suspicion See e g Truong 629 F 2d at 913 United States v Cavanagh 807 F 2d 787 790-91 9th Cir 1987 United States v Duka 671 F 3d 329 338 3d Cir 2011 In re Sealed Case 310 F 3d 717 720 FISCR 2002 Section 702 contains no such limitations The surveillance is not limited to foreign powers or agents of foreign powers but may target any non-citizen outside the United States And all targeting decisions are handed off to an untold number of Government intelligence analysts No court has ever recognized a foreign intelligence exception sweeping enough to render constitutional the surveillance at issue here See PCLOB Report 90 n 411 see also In re Directives 551 F 3d 1004 1013-16 FISCR 2008 3 Even if the warrant clause were inapplicable Section 702 surveillance would still be unconstitutional because it is unreasonable 14 The ultimate touchstone of the Fourth Amendment is reasonableness and the reasonableness requirement applies even where the warrant requirement does not Brigham City Utah v Stuart 547 U S 398 403 2006 Reasonableness is determined by examining the totality of the circumstances to assess on the one hand the degree to which Government conduct intrudes upon an individual's privacy and on the other the degree to which it is needed for the promotion of legitimate governmental interests Samson v California 547 U S 843 848 2006 internal quotation marks omitted To be reasonable electronic surveillance must be precise and discriminate and carefully circumscribed so as to prevent unauthorized invasions of privacy Berger 388 U S at 58 internal quotation marks omitted Courts assessing the lawfulness of electronic surveillance have looked to FISA and Title III as measures of reasonableness See e g United States v Biasucci 786 F 2d 504 510 2d Cir 1986 video surveillance United States v Koyomejian 970 F 2d 536 542 9th Cir 1992 Section 702 sur veillance lacks the indicia of reasonableness these statutes possess It abandons the Warrant Clause's core requirements--individualized suspicion prior individualized judicial review and particularity--thereby eliminating the primary bulwarks against general surveillance that courts have relied on to uphold the constitutionality of both FISA and Title III See e g Cavanagh 807 F 2d at 790 FISA In re Sealed Case 310 F 3d at 739-40 FISA United States v Turner 528 F 2d 143 158-59 9th Cir 1975 Title III 15 The targeting and minimization procedures adopted by the Government pursuant to Section 702 exacerbate these flaws by allowing collection retention and dissemination of U S persons' international communications in vast quantities Indeed the minimization procedures explicitly permit the Government to retain and disseminate U S persons' international communications for almost a dozen reasons including when it determines that the communications contain significant foreign intelligence information or evidence of a crime and permit retention for as long as five years--even those U S person communications that do not contain any foreign intelligence or evidence of a crime See Minimization Procedures Used by the NSA in Connection with Acquisitions of Foreign Intelligence Information NSA Minimization Procedures 3 b 1 3 c 1 5 1 - 2 6 a 2 6 b 22 The minimization procedures also permit backdoor searches in which the Government searches its repository of Section 702-collected communications specifically for information about U S citizens and residents--like Mr Mohamud--including for evidence of criminal activity See PCLOB Report at 59 NSA Minimization Procedures 3 b 5 These queries are an end-run around the Fourth Amendment converting sweeping warrantless surveillance directed at foreigners into a tool for investigating Americans in ordinary criminal investigations 22 https www dni gov files documents icotr 51117 2016NSA-702-Minimization-Procedures_Mar_30_17 pdf 16 B Section 702 violates Article III Section 702 obligates the FISC to evaluate--on a programmatic basis--the statutory and constitutional validity of the procedures the Government intends to use to conduct surveillance 50 U S C 1881a i The FISC's evaluation is largely divorced from the specifics of particular surveillance techniques or targets It is nearly entirely secret and ex parte And with only limited exceptions it is not subject to further adversarial testing or additional judicial scrutiny Section 702 thus transforms and distorts the role of the Article III judges serving on the FISC in an unprecedented manner That transformation violates Article III The federal judicial power is limited by Article III to Cases and Controversies Mistretta v United States 488 U S 361 385 1989 Those two words confine the business of the federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process Massachusetts v EPA 549 U S 497 516 2007 internal quotation marks omitted Although not strictly adversarial the issuance of search warrants by Article III courts is commonly seen as a proper exercise of the judicial power See Mistretta 488 U S at 389 n 16 Keith 407 U S at 317-18 see also James E Pfander Daniel D Birk Article III Judicial Power the Adverse-Party Requirement and Non-Contentious Jurisdiction 124 Yale L J 1346 1462-65 2015 In its original formulation the FISC's role resembled this traditional judicial function Under Title I of FISA 17 the FISC is authorized to approve individual applications to conduct foreign intelligence surveillance These applications require the FISC to evaluate within specific factual contexts whether probable cause exists to believe that targets of surveillance are foreign powers or their agents and that the facilities to be monitored will be used by these targets See e g 50 U S C 1805 a The FISC thus issues warrant-like surveillance orders to conduct foreign intelligence surveillance of particular targets--much like Article III courts do under Title III See generally 18 U S C 2518 Still the FISC's role under FISA's Title I presented a difficult Article III question even for the Department of Justice Elizabeth Gotein Faiza Patel What Went Wrong with the FISA Court What Went Wrong Brennan Center for Justice 7 Mar 2015 quoting DOJ testimony 23 Ultimately the Department concluded that under FISA's original procedures the FISC would be deciding a case or controversy because what is to be determined is the United States' authority to conduct electronic surveillance of a particular target and t he judge is required under the bill to apply standards of law to the facts of a particular case Id at 31 emphasis added internal quotation marks omitted accord In re Sealed Case 310 F 3d at 732 n 19 The FISC's role under Section 702 lacks these similarities to warrant procedure and instead represents a wholesale departure from traditional Article III practice See Stephen Vladeck The FISA Court and Article III 72 23 https w w w brennancenter org sites default files analysis What_Went_%20Wrong_With_The _FISA_Court pdf 18 Wash Lee L Rev 1161 1169 n 26 2015 The FISC's review under Section 702 is divorced entirely from the specifics of any particular surveillance targets or cases-- the primary factor that in the Justice Department's view saved the original FISA application process Rather than evaluating specific facts related to specific surveillance targets the FISC instead reviews procedures the Government intends to use when making targeting and retention decisions for future surveillance This preliminary review is more akin to rendering an advisory opinion upon a statute or a declaratory judgment upon a hypothetical case than traditional Article III practice of authorizing warrants or specific surveillance orders Watson v Buck 313 U S 387 402 1941 see also What Went Wrong at 33 FISA Court judges simply don't know the specific activities that the procedures may authorize in any given case Although Section 702 requires the FISC to review the contours of the Government's surveillance plan these initial plans are often quite different than the surveillance the Government actually carries out in practice Indeed a series of declassified FISC decisions reveal systemic violations arising from surveillance carried out under FISC orders--surveillance that differed substantially from the surveillance the FISC authorized See e g Redacted 2011 WL 10945618 at 10 11 n 32 basing ruling in part on conjecture because the FISC could not assess for certain how the Government's surveillance operated August 30 FISC Order at 11 n 7 describing NSA failures to comply with FISC orders resulting in NSA's acquisition of communications falling outside the scope of Section 702 see also In re Production of Tangible Things from Redacted BR 08-13 FISC Mar 19 2 2009 at 14 describing government's historical record of non-compliance with FISC's orders 24 This again demonstrates the advisory and preliminary nature of the FISC's review the court is obligated to pass upon the possible significance of the manifold provisions of a broad and complicated set of procedures in advance of efforts to apply the separate provisions Watson 313 U S at 402 III The Ninth Circuit's decision was incorrect and could have far reaching consequences for the privacy of international communications Contrary to precedent from this Court the Ninth Circuit created two novel Fourth Amendment rules to uphold the Government's warrantless searches of Americans' communications The court also inexplicably avoided one of the most problematic uses of this surveillance in its decision The combination of these errors creates a dangerous end-run around the Fourth Amendment with broad implications not just for foreign intelligence collection but also for ordinary criminal investigations A The court improperly relied on the incidental overhear rule to create a new exception to the warrant requirement Although the surveillance in this case occurred on U S soil and although the Government indisputably searched the private emails of an American the Ninth 24 https www aclu org files assets pub_March%202%20 2009%20Order%20from%20FISC pdf 20 Circuit held that the Fourth Amendment's warrant requirement did not apply The court reasoned that because the Government's surveillance target was not entitled to the protection of a warrant Mr Mohamud forfeited that protection as well See Pet App at 38-43 But the rationale the panel relied on--often called the incidental overhear rule--is not an exception to the Fourth Amendment's warrant requirement The formative cases establishing this rule apply it only when the Government has already sought and obtained a valid warrant See e g United States v Kahn 415 U S 143 1974 Donovan 429 U S at 418 United States v Figueroa 757 F 2d 466 2d Cir 1985 United States v Martin 599 F 2d 880 884-85 9th Cir 1979 The Ninth Circuit ignored the underpinning of the incidental overhear rule which is inextricably tied to the nature and function of a warrant The warrant process requires courts to carefully circumscribe surveillance and limit Government intrusion into the privacy of those whose communications will be intercepted As this Court has made clear warrants not directed at a person or target in general are too broad warrants must describe particular pieces of evidence such as a particular category of communications on a particular phone line Berger 388 U S at 59 invalidating eavesdropping statute requiring the Government to do no more than identify the person whose constitutionally protected area is to be invaded When the Government has shown probable cause to seize communications--and has thereby satisfied the necessary Fourth Amendment threshold--its warrant satisfies the privacy interests of all parties to the communications including parties who are incidentally 21 overheard By contrast the complete absence of prior judicial authorization would make an incidental intercept unlawful Donovan 429 U S at 436 n 24 As described above the surveillance in this case--like all Section 702 surveillance--did not involve a warrant That the Government's target was not a U S person is of no moment The Fourth Amendment's protection is nowhere limited to targets Even if the Government claims to be targeting someone else who lacks Fourth Amendment rights it is not entitled to ignore the rights of a U S person who is entitled to that protection The implications of this holding reach far beyond the national security context Americans today engage in international Internet communications on a massive scale Even seemingly domestic communications may be routed around the world unbeknownst to the sender or recipient See Sharon Goldberg Surveillance without Borders The Traffic Shaping Loophole and Why it Matters The Century Foundation June 22 2017 25 If the court's analysis stands the Government could intercept any international communication without a warrant-- including in criminal investigations--simply by targeting a party who lacked Fourth Amendment rights See Orin Kerr The Surprisingly Weak Reasoning of Mohamud Lawfare Dec 23 2016 26 Indeed the Government could theoretically collect all international communications for any purpose so long as it claimed to be targeting the 25 https tcf org content report surveillance-withoutborders-the-traffic-shaping-loophole-and-why-it-matters 26 https w w w law fareblog com surprisingly-weakreasoning-mohamud 22 foreigners on the other end of those communications-- thereby incidentally and warrantlessly collecting Americans' private communications B The court misapplied the third-party doctrine in conflict with this Court's precedent The Ninth Circuit's holding that the so-called thirdparty doctrine diminished Mr Mohamud's expectation of privacy Pet App at 46 is also untenable and squarely at odds with this Court's precedent As an initial matter the third-party doctrine does not apply to the contents of private online communications that are not deliberately shared with a third party such as the emails at issue here Under the third-party doctrine when information is deliberately shared with a third party or the public an individual's expectation of privacy in that information is typically extinguished See e g Miller v United States 425 U S 435 443 1976 But this doctrine has never been extended to the contents of private communications and doing so would conflict with this Court's long-standing protection of communications that are carried by intermediaries like mail carriers and telephone providers See Ex Parte Jackson 96 U S 727 723 1877 Katz 389 U S at 353 see also Warshak 631 F 3d at 286-88 More generally the third-party doctrine does not result in a reduced expectation of privacy as the court held Pet App at 46 emphasis added Properly understood the doctrine either applies--and eliminates Fourth Amendment protection--or does not apply Relatedly the third party that the court pointed to was 23 not a third party at all but simply the intended recipient of Mr Mohamud's private communications Compare id with United States v Graham 824 F 3d 421 433 n 12 4th Cir 2016 en banc Virtually all private communications have at least two parties When a person sends a private email the mere act of clicking send does not eliminate or reduce any privacy interest This reasoning would restrict Fourth Amendment protections for essentially all private communications--a result directly in conflict with this Court's decisions in Katz and Ex Parte Jackson C The court ignored the Government's widespread use of backdoor searches to query and examine the communications of Americans including Mr Mohamud The Government's practice of amassing U S person communications using Section 702 and then later searching through them-- backdoor searching--is one of the most controversial aspects of this surveillance 27 Yet contrary to all evidence in the public record and without elaboration the court abruptly concluded that the issue was not before it See Pet App at 37 A ll evidence suggests the Government used a secondary search to deliberately retrieve and examine Mr Mohamud's private emails According to the Privacy and Civil Liberties Oversight Board whenever the FBI opens a new national security investigation or assessment FBI personnel will query previously acquired 27 See Sen Ron Wyden Wyden Releases Details of Backdoor Searches of Americans' Communications June 30 2014 http bit ly 2mizZQ1 24 information from a variety of sources including Section 702 for information relevant to the investigation or assessment PCLOB Report at 59 That is precisely what FBI agents appear to have done here The FBI agent who investigated Mr Mohamud specifically testified that he began the investigation by running Mr Mohamud's email address through an FBI database --one that apparently contained FISA information 28 Ninth Cir E R 5122-23 Second unlike the Ninth Circuit's opinion the district court directly addressed the lawfulness of secondary searches in a discussion titled Querying After Acquisition that spanned four pages See Pet App at 103-06 describing Mr Mohamud's challenge to the secondary search as his most persuasive argument The district court stated that it was a very close question whether such a search of a U S person's communications was constitutional This entire discussion is inexplicable if the Government never conducted such a warrantless query of Mr Mohamud's communications Above all the court's failure to address this issue is significant because as a result its Fourth Amendment reasonableness analysis ignores one of the critical--and most unreasonable--ways in which the Government uses Section 702 surveillance as a backdoor into Americans' private communications 28 The FBI has stated that its FISA and Section 702 databases are commingled and thus queried simultaneously PCLOB Report at 59 25 D The court erred by concluding that Section 702 is consistent with Article III because it resembles review of search warrants and wiretap applications The Ninth Circuit in a footnote rejected Mr Mohamud's Article III challenge That conclusion was premised on two errors First the panel concluded that the FISC's role is similar to the review of search warrants and wiretap applications Pet App at 49 n 28 As explained previously that is incorrect it ignores fundamental differences between the Judiciary's role in Section 702 and in search warrant or wiretap applications See Section I supra Second the court erred in concluding that FISC review under Section 702 is not advisory because the FISC either approves or denies the requested application Id That FISC review yields an approval or denial does not answer whether the issues it considers are a justiciable case or controversy Article III's prohibition on advisory opinions would be largely illusory if parties could avoid it by requesting a court explicitly approve or deny a requested course of conduct Instead the nature and posture of the question presented--not necessarily the outcome of that review--is paramount See United States v Fruehauf 365 U S 146 157 1961 Article III forbids advance expressions of legal judgment on unfocused issues that lack clear concreteness Here the lessons taught by the particular are lost when the FISC offers its preliminary judgment on the legality of future surveillance Sabri v United States 541 U S 600 609 2004 That preliminary and advisory review violates Article III 26 CONCLUSION This case presents significant and unanswered constitutional questions that affect the privacy of every American's international communications The Court should grant the petition to definitively resolve these significant issues Dated August 9 2017 Respectfully submitted A NDREW CROCKER Counsel of Record MARK RUMOLD JAMIE WILLIAMS ELECTRONIC FRONTIER FOUNDATION 815 Eddy Street San Francisco California 94109 415 436-9333 andrew@eff org Counsel for Amici Curiae APPENDIX 1a Appendix APPENDIX The Electronic Frontier Foundation EFF is a nonprofit member-supported civil liberties organization working to protect rights in the digital world With over 37 000 active donors and dues-paying members EFF represents the interests of technology users in court cases and broader policy debates surrounding the application of law in the digital age EFF has appeared before the federal courts including the FISC in multiple cases involving the Fourth Amendment and foreign-intelligence surveillance EFF serves as counsel for plaintiffs in Jewel v NSA 08-4373 N D Cal a case challenging the National Security Agency's upstream surveillance technique under Section 702 EFF filed amicus briefs in the district court and before the court of appeals in this case The Center for Democracy Technology CDT is a non-profit public interest organization that advocates for individual rights in Internet law and policy CDT represents the public's interest in an open innovative and decentralized Internet that promotes constitutional and democratic values of free expression access to information privacy and individual liberty CDT has played a leading role in advocating for legislative reform to the FISA Amendments Act New America's Open Technology Institute OTI is New America's program dedicated to ensuring that all communities have equitable access to digital technology and its benefits promoting universal access to communications technologies that are both open and 2a Appendix secure New America is a Washington DC based think tank and civic enterprise committed to renewing American politics prosperity and purpose in the Digital Age through big ideas bridging the gap between technology and policy and curating broad public conversation Since 2014 OTI has advocated for reforms to foreign intelligence surveillance laws including to Section 702 of the Foreign Intelligence Surveillance Act OTI has written extensively about the scope and constitutionality of Section 702 and other foreign intelligence surveillance authorities                     National Security Archive    Suite 701  Gelman Library  The George Washington University    2130 H Street  NW  Washington  D C  20037    Phone  202 994‐7000  Fax  202 994‐7005  nsarchiv@gwu edu