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

from the PARALLEL-CONSTRUCTION-INTENSIFIES dept

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.

Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 9th circuit, criminal, due process, intelligence community, parallel construction, surveillance


Reader Comments

Subscribe: RSS

View by: Time | Thread


  • identicon
    work1@sdf.org, 15 Sep 2020 @ 3:59pm

    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.

    reply to this | link to this | view in chronology ]

    • icon
      Anonymous Anonymous Coward (profile), 15 Sep 2020 @ 4:28pm

      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.

      reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 18 Sep 2020 @ 7:13am

      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.

      reply to this | link to this | view in chronology ]

  • icon
    Tanner Andrews (profile), 17 Sep 2020 @ 12:47am

    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.

    reply to this | link to this | view in chronology ]

  • icon
    versiehtmv (profile), 19 Sep 2020 @ 12:03am

    Review

    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. https://www.upsers.app/ 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.

    reply to this | link to this | view in chronology ]

    • icon
      Bergman (profile), 20 Sep 2020 @ 1:23pm

      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.

      reply to this | link to this | view in chronology ]


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Close

Add A Reply

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Essential Reading
Techdirt Insider Chat
Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.