NSA Bulk Phone Data Collection Unlawful, Appeals Court Rules

Elliot Setzer
Thursday, September 3, 2020, 11:21 AM

Published by The Lawfare Institute
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The National Security Agency’s bulk collection of Americans’ phone records was unlawful, the U.S. Court of Appeals for the Ninth Circuit ruled on Sept. 2.

A unanimous three-judge panel for the Ninth Circuit found that the warrantless collection of call metadata violated the Foreign Intelligence Surveillance Act (FISA) and was possibly unconstitutional under the Fourth Amendment. The NSA’s call-records program officially ended in 2015 after Congress passed the USA FREEDOM Act.

Despite this conclusion about the legality of the surveillance program, the court upheld the convictions of four Somali immigrants who brought the legal challenge. The men—Basaaly Saeed Moalin, Ahmed Nasir Taalil Mohamud, Mohamed Mohamud and Issa Doreh—were convicted in 2013 of sending money to the foreign terrorist organization al-Shabaab. U.S. officials claimed that the four men were convicted based on evidence collected through the NSA’s telephone record program, but the Ninth Circuit ruled that this assertion was “inconsistent with the contents of the classified record.” The court found that the illegal surveillance thus did not taint the evidence introduced by the government at trial.

The Ninth Circuit said that the government “may have violated the Fourth Amendment” when it collected the metadata of millions of Americans, but didn’t resolve the question. Since it rejected the claim that the defendants’ prosecution was based on evidence from the call-records program, the court determined that the defendant’s motion to suppress this evidence “is not warranted on the facts of this case.”

The court also wrote that the government must provide notice to criminal defendants prosecuted with evidence obtained from surveillance conducted under FISA and the 2008 FISA Amendment Act. The Ninth Circuit ruled that this requirement also applies to surveillance “conducted under other foreign intelligence authorities, including Executive Order 12,333.”

You can read the decision here and below:

Elliot Setzer is a Knight-Hennessy Scholar at Stanford Law School and a Ph.D student at Yale University. He previously worked at Lawfare and the Brookings Institution.

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