Ninth Circuit Appeals Court May Have Raised The Bar On Notifying Defendants About Secretive Surveillance Techniques


Recently — perhaps far too recently — the Ninth Circuit Appeals Court said the bulk phone records collection the NSA engaged in for years was most likely unconstitutional and definitely a violation of the laws authorizing it. The Appeals Court did not go so far as to declare it unconstitutional, finding that the records collected by the government had little bearing on the prosecution of a suspected terrorist. But it did declare it illegal.

Unfortunately, the ruling didn’t have much of an effect. The NSA had already abandoned the program, finding it mostly useless and almost impossible to comply with under the restrictions laid down by the USA Freedom Act. Rather than continually violate the new law, the NSA chose to shut it down, ending the bulk collection of phone metadata… at least under this authority.

But there’s something in the ruling that may have a much larger ripple effect. Orin Kerr noticed some language in the opinion that suggests the Ninth Circuit is establishing a new notification requirement for criminal prosecutions. For years, the government has all but ignored its duty to inform defendants of the use of FISA-derived evidence against them. The DOJ has considered FISA surveillance so secret and sensitive defendants can’t even be told about it. Defendants fight blind, going up against parallel construction and ex parte submissions that keep them in the dark about how the government obtained its evidence.

The language in the Ninth Circuit ruling changes that. It appears to suggest (but possibly not erect, unfortunately) an affirmative duty to inform defendants about surveillance techniques used by the government.

In Moalin, the question was whether defendants had to be notified about a warrantless national security program involving telephone metadata that had been collected about them as part of the investigation. I would have thought the answer is no. Most obviously, there was no search warrant about which to give notice. And beyond that, I would have thought the program under then-existing precedent not to be a search at all.

The Ninth Circuit imagines a different kind of notice requirement, though. Instead of a notice requirement that a warrant was executed, flowing from the warrant itself, this is a notice requirement that appears to be triggered only if and when criminal charges are filed providing notice that evidence about a person was collected using a surveillance practice that may or may not be a search. In effect, it’s a notice to criminal defendants to consider filing a motion to suppress to challenge the investigation and vindicate any Fourth Amendment rights that may or may not have been at stake.

Huge if true. This is the court giving defendants an opportunity to suppress evidence derived from surveillance efforts courts may not (at this point) consider searches under the Fourth Amendment. The Constitutionality may be unsettled, but that shouldn’t limit defendants’ ability to raise challenges. This is from the opinion:

The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.

Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function.

According to the Ninth Circuit, the Fourth Amendment standard of providing notice to defendants also applies to searches that the government (and some courts) have considered to be outside of the Fourth Amendment’s reach — like the acquisition of third-party records and foreigner-targeting surveillance efforts.

The government can still provide notice without giving up its secrecy, which should (hopefully) limit the number of times the government claims national security trumps all other rulings, regulations, precedential decisions, and Constitutional amendments. The government can have its secrecy and its notification, says the court.

Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security, then the court can review the materials bearing on its legality in camera and ex parte.

This would be breaking new ground, especially in cases where the government is using FISA-derived evidence. As Kerr points out, this isn’t limited to settled Fourth Amendment precedent. This would allow defendants to challenge evidence derived from techniques and programs courts have yet to address. And this will (hopefully) force courts to confront unsettled Fourth Amendment issues, rather than dismiss them out of hand because no court has previously addressed novel (or secret) surveillance practices.

[N]ot only does it not require a warrant, it doesn’t even seem to require a search. The notice seems to be that evidence was obtained using a surveillance authority. It doesn’t appear to require that this authority is anything that has been understood to involve Fourth Amendment searches or seizures. Rather, the notice is provided so a person can bring a challenge and argue to a court that it’s a search or seizure, and an unreasonable search or seizure at that.

Put another way, this appears to be a Fourth Amendment notice requirement to alert criminal defendants that the government took steps that might constitute a search—but also might turn out not to be a search at all once a court reviews the matter closely. It has faint echoes to me of Miranda v. Arizona, in that it’s a judicially created notice about your rights potentially at stake so that you can take action to vindicate your rights.

If this is what the court is saying, the Ninth Circuit will be handling all sorts of interesting — and precedent-setting — cases in the near future. If the government has to be honest about its surveillance techniques, it will no longer be able to dodge Constitutional scrutiny by citing the Third Party Doctrine or claiming national security issues prevent it from informing defendants of the origin of evidence used against them.

This will have the most impact in cases where FISA evidence is in play and the government — perhaps secure that its national security mantra will encourage the court to aid and abet in obfuscation — hasn’t bothered to engage in parallel construction. On the flipside, government lawyers have probably already parsed this latent threat to unearned secrecy and will be encouraging everyone involved to perform their surveillance in triplicate to prevent the establishment of warrant requirements in cases where reasonable suspicion can’t even be met.

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Comments on “Ninth Circuit Appeals Court May Have Raised The Bar On Notifying Defendants About Secretive Surveillance Techniques”

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13 Comments says:

Rather than continually violate the new law, the NSA chose to shut it down, ending the bulk collection of phone metadata… at least under this authority.

Sure. The NSA will no longer do it. Instead, they’ll assist private contractors – Fusion Centers – in the task, and by current practice the fusion centers become "informants" and all the legal requirements are met.

Really. Why take the heat for illegal activity when you can just outsource it?

Fusion centers are a cancer on the justice system, but most people don’t even know they exist, much less what they do.

Anonymous Anonymous Coward (profile) says:

Re: Re:

Five Eyes. You forgot Five Eyes, the international buddy system for intelligence agencies. They don’t need private contractors, they just get one of their partners to do it, and come away with clean hands. The question will remain, however, that when this becomes clear to the courts if the same issue of circumventing rules surrounding 4th Amendment activities won’t come up again. As they should.

Bergman (profile) says:

Re: Re:

If the government cannot do it without a warrant, and the law makes it a felony for anyone to do it without a warrant, what prevents any random private citizen from making a citizen’s arrest?

Federal law follows common law on citizen’s arrests and defers to state law when it is available – and the only state that forbids a citizen’s arrest for a felony is North Carolina.

Tanner Andrews (profile) says:

Some Inconvenience Amelierated

If the government avers that disclosure of information relating to the surveillance would harm national security, then the court can review the materials bearing on its legality in camera and ex parte. [from the opinion]

Due process requires notice and opportunity to be heard. Mathews v. Eldridge, 424 U.S. 319,333 (US 1976).

The idea that the government can supply secret material to the court and not share it with the opposing party would seem to be contrary to the notice requirement. If you cannot see what you are responding to, then notice is essentially meaningless.

And the court deciding, ex parte, based only on government submissions, would seem to be contrary to the opportunity-to-be-heard requirement. If you cannot be heard, then you have make-believe due process at best. Sure, that works in Russia, or Red China, but we may not want that in the civilized world.

versiehtmv (profile) says:


You forgot Five Eyes, the international buddy system for intelligence agencies. They don’t need private contractors, they just get one of their partners to do it, and come away with clean hands. The question will remain, however, that when this becomes clear to the courts if the same issue of circumventing rules surrounding 4th Amendment activities won’t come up again.

Bergman (profile) says:

Re: Review

It just goes to show how criminally corrupt our government is, when the Five Eyes system being used to acquire data they aren’t allowed to acquire themselves is completely illegal under US laws, but no one is ever arrested, charged or convicted for it.

But people have been arrested, charged and convicted for reporting the criminality and law-breaking.

jonny says:

Parallel construction is framing,aka sting operations, you may have had in the past had a criminal case where you were convicted or pleaded guilty and information from a psychiatrist where a little derogatory?adverse information is added to the police database to help profile you later this info is flagged to your passport before you travel via the chip in your passport your passport/ID this specialist investigative techniques plus some illegal techniques, they know your identity because some dirty cop got an informant to steal your bag/rucksack or a neighbour/Landlord helped helped with a sneek and peek unlocked the door into your room/appartment on false pretences, now that they have your previous passport your identity is compromised and you are in danger as you may have already been have been framed or had planted evidence to make you a suspect in something you would never do but usually they just add false information put on the police database to profile you as something you are not and would never do, this repeats a few times they try over and over with success to steal your bag or wallet in the street, public place,work, home or anywhere where possible using a different informant in the operation so you dont catch on, they go for your bag/rucksack/ /trouser or jacket/pocket, this is connected to (parallel construction which is setting you up and Framing you, now they know your genuine suspected previous crime/s info and your photo will have been diseminated to government people and they follow you around, monitor your behavior, sometimes harass you, and snitch on your whereabouts
enabling intels cops to track you and try and arrest you which is the whole point, if you are not caught for the alleged genuine previous crimes then they will frame you stolen and Lost and found "planted evidence” for 2 reasons, to prove who you are in relation to a previous investigation into a genuine crime you are a known or strongly suspected, and to frame you possibley even for murder using planted ID that they stole from you (Lost and found Passport ID)
this info can be used against you abroad by flagging your passport with the false/planted intelligence and stealing your ID and framing you again using this false information flagged to your passport, sercet intelligence sharing agreements mi, gsdg,bnd,fbi,avio etc

Anonymous Coward says:

When Law enforcement have a suspect but cannot arrest them for one one reason and another they engage in Parallel construction, it works by stealing their identity identity which is done by a dirty cop informant, false information may they be added to the police national database on top of any previous derogatory/adverse information which first gets them targeted in a kind of secret bogus investigation and gets them harassed by neigbours, certain peer group member or outsiders who the suspect doesnt know

statesecrets says:

parallel construction is personal information warfare, this begins by someone entering your room on a false pretence by your Landlord/owner, copying photographing your ID passport and when you are next detained or arrested derogatory/adverse information about you from a doctor or psychiatrist report gets put on the police database, this derogatory information Leads to a frame up, then involves more passport/ID personal document theft by an informant to investigate you and frame you up again based on the first frame up! if its a political motivation means you are the subject of a counterintelligence investigation/operation is desguised as a police investigations! this is possibility for political reasons you get compromised and subjected to identity theft/cloning and framed by informants abusing the Legal system if they are given Pii document they know who you are and told you are under police investigation which makes you are a soft target to be framed for murder!
this is what gangstalking and the terrorist databases with parallel construction is counterintelligence/personal information warfare from Kompromat!

Corrupt detectives, informants, framings killings says:

Hope the truth comes out in public,parallel construction is truly evil is a deliberate step by step process of destroying the targets life involving corrupt detectives police or agency informants are stealing pii so they can classify a phony investigation because they cant get you for something you are suspected in, problem is it goes eay too far, the derogatory info and bits of info reports derogatory adverse information national police database
When you have any further minor offence they steal PPI personal administrative document passport driver licence plant the document at the scene of a framing you for a murder they commit at night so no contradictory wiitnesses and have planted false witness walk by you seconds aftet you begin walking down down street make comment about what did you do? They put you as suspect info on police database iwhere the placed corrupt homicide detective will be on the case (he is part of their network)
They keep the investigation secret so they can kill you off and there won’t be any proper investigation of your death because they will say you are a murder suspect!
The next step is to frame you for a much smaller crime so when you are booked at the police station
And go to court they can film you spy you out with a bodycam and use this photo to investigate you by creating a psuedo crime staged crime using amorphed photo of you in the picture
This staged crime using iclandestine ntercepted electronic evidence is used with legal material after they frame you again as an excuse to go after you for something genuine you were wanted for before they stole your ID and opened the secret investigation
They have something on you and stole your official documents to plant at the scene and frame you!
They may try to have you killed off if their investigation stalls and their are political reasons or they think you can burn their criminal informants, they also try honeytraps, if that doesn’t work they get a woman to falsely accuse you corrupt informant cop pushes you from behind into them & other dirty trick
If they eventually get you on a false charge this info is used to investigate you aka parallel construction they can try frame you for murder because political reasons and not toburn their informants and corrupt detectives if they think you might know their faces
They frame you to protect themselves from any possible exposure of their crimes, this is parallel construction to compromise the target, harass. Intimidate, then to
Frame and neutralise , this is parallel construction aka gangstalking aka targeted persons. It is much worse than all the same small tactics they use on disinfo sites but never mention the abuse of inteligence sharing, no touch torture daily harassment/intimidation, suicides, framings and murder they frame the target for when all else fails, there you have it. parallel construction/gangstalking is an evil kill program


Anon not wrong says:

The five eyes or four eyes (NZ dropped out)
They steal youtr id:passport etc in one country, then ask abusive request for information, which border you crossed through interpol so they can set you up and share fake intel with third party country spy agency, then disseminate fake intel to your foreign intel agency, can be shared with several eyes if information derived from an intelligence operation involving any of the five eyes partners, If you are from a five eyes nation, they can have an undercover and informant set you up and share intel with five eyes through a third party country, Daily Harassment,being followed around on foot by very different people of most ages then ensues!

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