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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