As a threshold matter, “the Fourth Amendment does not apply to searches and seizures by the United States against a non-resident alien in a foreign country.” United States v. Zakharov, 468 F.3d 1171, 1179 (9th Cir. 2006) (citing United States v. Verdugo-Urquidez, 494 U.S. 259, 274–75 (1990)); see also Verdugo-Urquidez, 494 U.S. at 274–75 (“At the time of the search, [respondent] was a citizen and resident of Mexico with no voluntary attachment to the United States, and the place searched was located in Mexico. Under these circumstances, the Fourth Amendment has no application.”).
Thus, the government’s monitoring of the overseas foreign national’s email fell outside the Fourth Amendment. Mohamud argues that under Verdugo-Urquidez, the location of the search matters, and that here, the searches took place in the United States.
Indeed, the government acknowledges that “collection from service providers under Section 702 takes place within the United States.” Yet, as one court put it, “what matters here is the location of the target,” and not where the government literally obtained the electronic data. United States v. Hasbajrami, No. 11-CR-623, 2016 WL 1029500, at *9 n.15 (E.D.N.Y. Mar. 8, 2016) (emphasis in original); see also Kris & Wilson, National Security Investigations & Prosecutions § 17:3 (2016) (“For non-U.S. person targets, there is no probable-cause requirement; the only thing that matters is [ ]the government’s reasonable belief about[ ] the target’s location.”).
Consistent with Verdugo-Urquidez and our precedent, we hold that this particular type of non-upstream collection— where a search was not directed at a U.S. person’s communications, though some were incidentally swept up in it—does not require a warrant, because the search was targeted at a non-U.S. person with no Fourth Amendment right.
Mohamud and Amici urge us not to apply this “incidental overhear” approach. First, Amici contend that surveillance of U.S. persons’ communications under § 702 is not “incidental” because the monitoring of communications between foreign targets and U.S. persons was specifically contemplated and to some degree desired. We agree that such communications were anticipated. As the Privacy and Civil Liberties Oversight Board found with respect to PRISM collection, “[t]he collection of communications to and from a target inevitably returns communications in which nontargets are on the other end, some of whom will be U.S. persons. Such ‘incidental’ collection of communications is not accidental, nor is it inadvertent.” PCLOB Report at 82; see also Laura K. Donohue, Section 702 and the Collection of International Telephone and Internet Content, 38 Harv. J.L. &Pub. Pol’y 117, 159–64, 259–62 (2015) (discussing the relative volume and intrusiveness of surveillance authorized under § 702). The fact that the government knew some U.S. persons’ communications would be swept up during foreign intelligence gathering does not make such collection any more unlawful in this context than in the Title III or traditional FISA context.
Mohamud and Amici also contend that the “sheer amount ‘incidental’ collection” separates § 702 from prior cases where courts have found such collection permissible. We agree with the district court’s observation that the most troubling aspect of this “incidental” collection is not whether such collection was anticipated, but rather its volume, which is vast, not de minimis. See PCLOB Report at 114 (“The term ‘incidental’ is appropriate because such collection is not accidental or inadvertent, but rather is an anticipated collateral result of monitoring an overseas target. But the term should not be understood to suggest that such collection is infrequent or that it is an inconsequential part of the Section 702 program.”). This quantity distinguishes § 702 collection from Title III and traditional FISA interceptions. However, the mere fact that more communications are being collected incidentally does not make it unconstitutional to apply the same approach to § 702 collection, though it does increase the importance of minimization procedures once the communications are collected.