from the sliding-under-the-low-bar-of-probable-cause dept
In late 2019, the federal government indicted a Twitter employee, accusing him of acting as an agent of Saudi government. The allegations were pretty ugly.
Defendants Ahmad Abouammo, Ali Alzabarah, and Ahmed Almutairi were charged by Indictment on November 19, 2019 for acting as agents of the government of Saudi Arabia without notification to the Attorney General as required by law. Abouammo and Alzabarah, while employees at Twitter, accessed without authorization and provided to officials of the government of Saudi Arabia nonpublic information about Twitter users that were of interest to the government of Saudi Arabia, including dissidents and critics of the government.
No one needs to be helping the Saudi government hunt down dissidents. This is a government that has actually killed a journalist critical of the Saudi prince — a killing followed by a dismemberment that occurred in the Saudi government’s Istanbul consulate.
The accusations were that Abouammo used his position as media partner manager for Twitter’s Middle East presence to access information about accounts the Saudi government wanted to spy on. The government has been pursuing a conviction for a couple of years now and has just been hit with a little bad news. It appears the FBI colored outside the constitutional lines while compiling evidence against Abouammo. Here’s Nicholas Iovino with more details for Courthouse News Service:
In August 2016, the FBI seized Abouammo’s Google account records, which revealed that a Saudi foreign official had emailed the defendant around the same time Abouammo started suddenly and frequently accessing a prominent Saudi critic’s user account, according to federal prosecutors.
Prosecutors say the email exchange also coincided with Abouammo meeting the Saudi foreign official in London, receiving a $20,000 watch from that same official and having numerous phone conversations with the Saudi representative.
Abouammo asked U.S. District Judge Edward Chen to throw out that evidence, arguing the FBI failed to establish probable cause in a search warrant application before confiscating his personal data.
On Tuesday, Chen partly granted Abouammo’s request.
The ruling [PDF] says the FBI used a bit of guesswork in a warrant affidavit, allowing presuppositions to replace facts. That sort of thing doesn’t comply with the Fourth Amendment.
Even assuming a deferential scope of review of the magistrate judge’s determination, see United States v. Wright, 215 F.3d 1020, 1025 (9th Cir. 2000), it is clear there was no probable cause to support the 2016 search. While there was probable cause to believe Defendant Ali Alzabarah accessed Twitter user information without authorization and that it was done at the behest of Foreign Official-1, there was no such probable cause with respect to Defendant Abouammo.
The indictment says one thing, but the affidavit the FBI used to obtain information says another.
There is no allegation that Defendant Abouammo, a U.S. citizen born in Egypt with no personal ties to Saudi Arabia, obtained unauthorized access to Twitter users, much less at the behest of the Saudi government. The circumstantial evidence of communications reveal little more than sporadic unremarkable communications with these subjects which does not fit any pattern with the illicit conduct of Defendant Alzabarah or Official-1.
And there may not even be any conspiracy… or at least none alleged sufficiently in the warrant affidavit seeking information from Google.
Other than being reciprocal Twitter followers, there is no evidence of any communication between Defendant Abouammo and Defendant Alzabarah. Similarly, there is little communication between Defendant Abouammo and Defendant Almutairi cited in the affidavit – i.e., two text messages in December 2014 prior to the alleged unlawful conduct of Defendant Alzabarah which started in January 2015.
From what the judge can see, there’s hardly any connective tissue between the allegations made by the government and the justifications it put in its affidavit when seeking a search warrant.
Defendant Abouammo’s emails to other senior Twitter directors who were located in other countries (outside the U.S. and Saudi Arabia) in December 2015 and January and February 2016 also prove nothing. There is no allegation that these directors were involved in any unauthorized access to use accounts or were connected with Official-1 or the Saudi government. Furthermore, the emails were sent to these directors’ Twitter email accounts, hardly a way to solicit participation in an illicit scheme as the government now suggests. That certain Saudi officials (other than Official-1) were brought into conversations in email exchanges with one of the Twitter directors again proves nothing. The sporadic patternless communications described in the affidavit – which include no direct communications with Defendant Alzabarah and two early (2014) text messages with Defendant Almutairi – are insufficient to establish probable cause to believe Defendant Abouammo had accessed without authorization Twitter user accounts at the behest of the Saudi government.
The results of this search will be suppressed. The government simply doesn’t have enough to justify this search. And the warrant is so deficient the court doesn’t see how the government could say it relied on it in good faith. Everything derived from this search is suppressed.
But that doesn’t mean Aboumammo is in the clear. Subsequent searches appear to have turned up other usable evidence and those still stand for the time being. The FBI’s 2018 search warrant (and the results of that search) is still in play, even when everything derived from the 2016 search is stripped from the affidavit.
Given what’s said in this short suppression order, it appears the FBI turned a hunch into a fishing expedition at Google HQ. If the government wants to prosecute federal crimes, it needs to remember all the rights it said were inalienable. Searches based on speculation aren’t acceptable. And hey, FBI: maybe don’t be evil.