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United States v. Muhtorov (Amicus Brief)

The Brennan Center filed an amicus brief urging the Tenth Circuit to recognize Americans’ privacy interests in their international communications.

Published: November 5, 2021

Jamshid Muht­orov, having been perse­cuted for human-rights advocacy in his home­land of Uzbek­istan, sought refuge in the United States in 2007. Almost imme­di­ately upon his arrival, the govern­ment began a protrac­ted campaign of surveil­lance that grew to touch every facet of his personal and profes­sional life. Federal agents tracked his travels as an inter­state truck driver, installed audi­ovisual equip­ment in his home, recor­ded his phone calls, and inter­cep­ted his elec­tronic commu­nic­a­tions. The fruit of that surveil­lance included multiple federal charges alleging that Muht­orov had rendered mater­ial support to an Uzbek terror­ist organ­iz­a­tion.

Only after Edward Snowden exposed the breadth of the National Secur­ity Agency’s surveil­lance programs did the govern­ment confirm that it had obtained Muht­orov’s email, phone, and Inter­net commu­nic­a­tions under Section 702 of the Foreign Intel­li­gence Surveil­lance Act (“FISA”). Section 702, enacted in 2008, author­izes warrant­less collec­tion of foreign targets’ commu­nic­a­tions, includ­ing their commu­nic­a­tions with Amer­ican citizens and resid­ents. Although the collec­tion of inform­a­tion about Amer­ic­ans is supposedly “incid­ental” and Congress required the govern­ment to “minim­ize” the use and reten­tion of such inform­a­tion, the govern­ment routinely searches through the commu­nic­a­tions collec­ted under Section 702 to find Amer­ic­ans’ emails, phone calls, and text messages. Section 702 has thus become a rich source of warrant­less access to Amer­ic­ans’ commu­nic­a­tions.

Muht­orov moved to exclude evid­ence obtained under Section 702, claim­ing that the surveil­lance viol­ated the Fourth Amend­ment. In addi­tion, when the govern­ment refused to disclose its under­ly­ing applic­a­tions to the Foreign Intel­li­gence Surveil­lance Court (“FISC”) and to detail elements of its surveil­lance regime that exten­ded beyond Section 702, he moved to compel disclos­ure on due process grounds.

In 2015, the district court held that Section 702 complies with the Fourth Amend­ment, and, as a result, it quashed Muht­orov’s motion to suppress evid­ence obtained pursu­ant to that provi­sion. Follow­ing a 25-day trial, Muht­orov was found guilty on three counts and sentenced to 11 years in prison. He appealed to the Tenth Circuit.

The Bren­nan Center filed an amicus brief with the Tenth Circuit support­ing reversal. Our brief shows that the rapid increase in govern­mental surveil­lance capa­city over the past decade has triggered novel Fourth Amend­ment ques­tions. In partic­u­lar, courts have not resolved how to safe­guard the consti­tu­tional rights of Amer­ic­ans who are in commu­nic­a­tion with foreign targets. The brief demon­strates that the United States’ defense of warrant­less surveil­lance rests on an erro­neous under­stand­ing of the “incid­ental over­hear” doctrine. While the govern­ment contends that surveil­lance of Amer­ic­ans in commu­nic­a­tion with foreign targets is lawful as long as the surveil­lance of the targets them­selves is lawful, we argue that Amer­ic­ans’ reas­on­able expect­a­tion of privacy in their foreign commu­nic­a­tion­s—which the courts have recog­nized—trig­gers the Fourth Amend­ment warrant require­ment unless an estab­lished excep­tion exists. Contrary to what the FISC and the Ninth Circuit have assumed, the “incid­ental over­hear” doctrine is not such an excep­tion, and indeed applies only where a warrant has been obtained. Our brief concludes that reject­ing this fabric­ated loop­hole in the Fourth Amend­ment’s warrant protec­tion is neces­sary to guard against the erosion of Amer­ic­ans’ privacy rights.

On Decem­ber 8, 2021, the court of appeals held that Section 702 complies with the Fourth Amend­ment. Judge Carlos Lucero dissen­ted, arguing that Amer­ican citizens and resid­ents “do not lose their protec­ted privacy interests when they commu­nic­ate with foreign­ers abroad.”

United States v. Muht­orov (Amicus Brief) by The Bren­nan Center for Justice on Scribd