Judge Marsha Berzon’s opinion, which contains a half-dozen references to the role of former NSA contractor and whistleblower Edward Snowden in disclosing the NSA metadata program, concludes that the “bulk collection” of such data violated the Foreign Intelligence Surveillance Act.
The call-tracking effort began without court authorization under President George W. Bush following the Sept. 11, 2001, terrorist attacks. A similar program was approved by the secretive FISA Court beginning in 2006 and renewed numerous times, but the 9th Circuit panel said those rulings were legally flawed.
The appeals court stopped just short of saying that the snooping was definitely unconstitutional, but rejected the Justice Department’s arguments that collecting the metadata did not amount to a search under a 40-year-old legal precedent because customers voluntarily share such info with telephone providers.
“Here the NSA collected Moalin’s (and millions of other Americans’) telephony metadata on an ongoing, daily basis for years,” wrote Berzon, an appointee of President Bill Clinton. “Moalin likely had a reasonable expectation of privacy in his telephony metadata — at the very least, it is a close question.”
Berzon’s opinion was jointed by Judge Jacqueline Nguyen, an appointee of President Barack Obama and Judge Jack Zouhary, who was appointed by President George W. Bush.
The 9th Circuit panel essentially endorsed a 2015 ruling from the New York-based 2nd Circuit that found the mass surveillance was not sufficiently tied to any specific investigation, as Congress appeared to require.
Berzon said the defendants were entitled to notice that the foreign-intelligence-related surveillance contributed to the case, but not necessarily the details of how. But she said even if Moalin and his co-defendants had clear notice of that, it wouldn’t have helped their defense.
“Based on our careful review of the classified record, we are satisfied that any lack of notice, assuming such notice was required, did not prejudice defendants,” she wrote. “Having carefully reviewed the classified FISA applications and all related classified information, we are convinced that under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial.”
During the public debate over the program — triggered, as the opinion notes in half a dozen places, by disclosures from Snowden — numerous officials pointed to the Moalin prosecution as concrete evidence that the program was contributing to U.S. prosecutions for terrorism. Other examples cited by officials were primarily overseas. And the Moalin case was not about any plans for attacks in the U.S., but in Somalia.
The new 9th Circuit opinion cites congressional testimony by former FBI official Sean Joyce that the metadata program gave agents a break that led to them reopening the investigation into Moalin. But Berzon goes on to suggest that the public claims by Joyce or others were inaccurate because the metadata program did not play a pivotal role.
“To the extent the public statements of government officials created a contrary impression, that impression is inconsistent with the contents of the classified record,” she wrote.
Joyce, who retired from the FBI several years ago, did not immediately respond to a message seeking comment.
The metadata program was officially shut down in 2015 after Congress passed the USA FREEDOM Act, which provided a new mechanism where phone providers retained their data instead of turning it over to the government. The revamped system appears to have been abandoned by the NSA in 2018 or 2019.
The release of the 59-page opinion Wednesday is another reminder of the exceedingly slow pace of some 9th Circuit appeals, particularly those involving classified information or FISA surveillance. The court took almost seven years to render its legal judgment on Moalin’s appeal, filed in November 2013. The case was argued in November 2016, two days after Donald Trump’s surprise victory in the presidential race.
Moalin, who received an 18-year sentence, and one of his co-defendants remain in prison. The two other co-defendants already completed their sentences and were released.
And the case may not be over yet: Any of the defendants or the government could seek review from a larger, 11-judge en banc court. A Supreme Court petition is also possible.
“We’re disappointed in the result, especially since more recent disclosures regarding misconduct regarding 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 Joshua L. Dratel, a lawyer for Moalin. “In this case, we believe that the lack of transparency was prejudicial to our ability to challenge the FISA surveillance.”
The American Civil Liberties Union hailed the decision as “a victory for our privacy rights,” though the left-leaning group said it was “disappointed that, having found the surveillance of Mr. Moalin unlawful, the court declined to order suppression of the illegally obtained evidence in his case.”
Moalin’s defense team is now “evaluating the options for further appeal,” the ACLU said.
A Justice Department spokesperson had no immediate comment on the ruling. An NSA spokesman declined to comment.
Another recent 9th Circuit decision involving allegations of illegal surveillance took about six years to produce an opinion, also authored by Berzon. The Justice Department said in a court filing Tuesday that it is still considering whether to seek Supreme Court review in that case.