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United States v. Moalin

In a brief, the Brennan Center argued that the NSA's systematic surveillance and collection of communications metadata violates the Fourth Amendment right to privacy.

Published: November 5, 2015

The Brennan Center filed an amicus brief in United States v. Moalin arguing that the National Security Agency’s (NSA) systematic surveillance and collection of communications metadata, such as phone numbers dialed and call durations, violates the Fourth Amendment right to privacy.

The case involves four Somali immigrants who were convicted in San Diego on terrorism financing charges. Following the revelations from NSA whistleblower Edward Snowden in 2013, it came to light that the investigation of defendant Basaaly Moalin was a product of the NSA’s phone metadata surveillance program under Section 215 of the Patriot Act.  To date, Moalin is the only instance identified by the government where the NSA’s mass surveillance program has been used in a terrorism prosecution. None of the defense attorneys was made aware of the NSA’s involvement at trial. 

In September 2013, Moalin’s attorneys filed a motion demanding a new trial in the District Court for the Southern District of California. The motion was denied, and the case is currently being appealed in the U.S. Court of Appeals for the Ninth Circuit.

The brief first catalogues NSA surveillance programs that systematically amass vast amounts of electronic communications and communications metadata. It then challenges the government’s assertion that there is no Fourth Amendment interest in this data under the so-called “third-party doctrine, which says that a warrant is not required to search and seize information that is “voluntarily conveyed” to third parties like the telephone company or Internet service provider.  The Brennan Center argues that even in limited quantities, communications metadata can provide considerable information about the kind of First Amendment expressive and associational activities that the Constitution was designed to protect.  In aggregate, metadata is particularly potent and easily manipulated to extrapolate social and political networks, personal beliefs, and private associations.  

The brief urges the Ninth Circuit to view communications metadata as the modern-day equivalent of private “papers” that the Fourth Amendment was designed to safeguard from unreasonable government intrusion. Accordingly, the Brennan Center argues that a warrant should be required to search or seize communications metadata.

The Brennan Center filed this brief in conjunction with the Electronic Privacy Information Center, the National Association of Criminal Defense Lawyers, the American Library Association, the Freedom to Read Foundation, the Reporters’ Committee for Freedom of the Press, and the Ninth Circuit Federal and Community Defenders. 

Download the brief here (PDF)

US v. Moalin- Brennan Center Amicus