The U.S. Court of Appeals for the 9th Circuit has handed down United States v. Mohamud, an important case on how the Fourth Amendment applies to the global Internet. The case involves monitoring under Section 702 of the Foreign Intelligence Surveillance Act. Warrantless monitoring of a foreign national’s email account from inside the United States revealed emails between the foreign national and Mohamud inside the United States. That led the government to obtain a FISA warrant to monitor Mohamud’s account. Among the questions in the case was whether the initial warrantless collection of the Mohamud’s emails, incidental to the targeting of the foreign national’s emails, was consistent with Fourth Amendment. In an opinion by Judge John Owens, the court ruled that the Fourth Amendment was not violated.

Here’s an overview of the reasoning together with a few (mostly critical) comments from me.

First, the court rules that no warrant is required when the government, from a monitoring point either inside or outside the United States, tries to monitor the communication of someone with no Fourth Amendment rights and collects the communications of U.S. persons only incidentally:

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.

I’m confused. Section 702 draws a statutory distinction between “targeting” someone and merely incidentally collecting that person’s communications. But how is that a constitutional distinction? There’s no Fourth Amendment concept of a “target,” at least that I know of. A “target” is a subjective concept, and the Supreme Court has repeated in dozens of cases that the Fourth Amendment follows objective rules rather than the government’s subjective intent. See, e.g., Whren v. United States, 517 U.S. 806, 814 (1996) (“The Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent.”); Horton v. California, 496 U.S. 128, 138 (1990) (“Evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer.”). And yet if I read the opinion correctly, whether there is a warrant requirement for monitoring hinges on the subjective question of who the government intends as its “target.”

I’m not sure what to make of this. Is the idea that the special needs exception applied in the national security setting reduces the warrant requirement to reasonableness, and that whether the special needs exception applies requires consideration of subjective intent? Or maybe the idea is that the warrant requirement has its own an intent requirement? I’m not sure. Verdugo-Urquidez says that some people have no Fourth Amendment rights, but I don’t see how that creates a “targeting” doctrine.

The court next assumes without deciding that Mohamud had Fourth Amendment rights in the emails collected: “It is unclear whether Mohamud had a right to bar use of these incidentally-collected communications in evidence against him on the basis that the communications were seized in violation of the Fourth Amendment. Commentators suggest that he does, so we will assume that here.”

Next, the court conducts a balancing inquiry and concludes that the monitoring here was reasonable. First, on the government side, the collection was about stopping terrorism, which is extremely important. Second, on the defendant’s side, the court concludes that Mohamud had only a “diminished” expectation of privacy:

The district court determined that under the third-party doctrine, Mohamud had a reduced expectation of privacy in his communications to third parties. We agree.

With respect to a U.S. person’s privacy interest, we treat emails as letters. See, e.g., [Redacted], 2011 WL 10945618, at *26 (FISA Ct. Oct. 3, 2011) (“Whether they are transmitted by letter, telephone or e-mail, a person’s private communications are akin to personal papers.”); United States v. Warshak, 631 F.3d 266, 285–86 (6th Cir. 2010) (“Given the fundamental similarities between email and traditional forms of communication, it would defy common sense to afford emails lesser Fourth Amendment protection.”).

Accordingly, until electronic communications reach the recipient, they retain the same level of privacy interest as if they were still in the home. See, e.g., United States v. Van Leeuwen, 397 U.S. 249, 251 (1970). But as with letters, “[a] person’s reasonable expectation of privacy may be diminished in ‘transmissions over the Internet or e-mail that have already arrived at the recipient.’” United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007) (quoting United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004) (citing Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001))); see also Guest, 255 F.3d at 333 (“[Users] would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this moment, the e-mailer would be analogous to a letter-writer, whose ‘expectation of privacy ordinarily terminates upon delivery’ of the letter.” (citation omitted)).

It is true that prior case law contemplates a diminished expectation of privacy due to the risk that the recipient will reveal the communication, not that the government will be monitoring the communication unbeknownst to the third party. See, e.g., United States v. Miller, 425 U.S. 435, 443 (1976); United States v. White, 401 U.S. 745, 752 (1971); Hoffa v. United States, 385 U.S. 293, 302 (1966). While these cases do not address the question of government interception, the communications at issue here had been sent to a third party, which reduces Mohamud’s privacy interest at least somewhat, if perhaps not as much as if the foreign national had turned them over to the government voluntarily. See also Hasbajrami, 2016 WL 1029500 at *11 & n.18 (observing same distinction).

Thus, Mohamud’s interest in the privacy of his communications received by the overseas foreign national is diminished.

I’m not particularly persuaded. If you analogize emails and letters — which I agree is correct — a person maintains full privacy rights in the letter until it is delivered and then has zero privacy rights in it after the letter is delivered. It’s an on-off switch, not a sliding scale. You have full privacy or none. Given that, why is the court speaking of “diminished” privacy rights, which implies some privacy rights but not full privacy rights? Cases like Miller, Hoffa, and White aren’t about people having “diminished” rights. They’re about circumstances in which a person has zero rights. Given that the court assumes that Mohamud had Fourth Amendment rights in the messages, it’s not clear it makes sense to rely on doctrines under which Mohamud would have no privacy rights to lower the amount of privacy at stake. (To be fair, Heckencamp used the word “diminished” in this context in dicta. But that was a single sentence relying on Lifshitz, which itself did not use that concept.)

The 9h Circuit cites a district court opinion by Judge Gleeson from earlier in the year for authority several times, and I gather they’re trying to follow Judge Gleeson. But Judge Gleeson’s opinion made some rather startling conclusions in footnotes with no analysis. It’s not exactly a model of legal analysis to follow, at least in my view.

The court then concludes that the monitoring was reasonable because there were other reasonable checks in place on the monitoring under the statute. The analysis is relatively long, and I’ll leave it to interested readers to check it out, but it ends with this:

Accordingly, although we do not place great weight on the oversight procedures, under the totality of the circumstances, we conclude that the applied targeting and minimization procedures adequately protected Mohamud’s diminished privacy interest, in light of the government’s compelling interest in national security.

In sum, even assuming Mohamud had a Fourth Amendment right in the incidentally collected communications, the search was reasonable. Thus, we hold that the application of § 702 did not violate the Fourth Amendment under the particular facts of this case.

The court also notes that its reasoning is not intended to answer every question about Section 702:

Although § 702 potentially raises complex statutory and constitutional issues, this case does not. As explained [in the opinion], the initial collection of Mohamud’s email communications did not involve so-called “upstreaming” or targeting of Mohamud under § 702, more controversial methods of collecting information. It also did not involve the retention and querying of incidentally collected communications. All this case involved was the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected. Confined to the particular facts of this case, we hold that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment.