FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`v.
`
`
`BASAALY SAEED MOALIN, AKA
`Basal, AKA Muse Shekhnor
`Roble,
`
`Defendant-Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`No. 13-50572
`
`D.C. No.
`3:10-cr-04246-JM-1
`
`
`
`
`
`
`No. 13-50578
`
`D.C. No.
`3:10-cr-04246-JM-2
`
`No. 13-50580
`
`D.C. No.
`3:10-cr-04246-JM-3
`
`
`
`v.
`
`
`MOHAMED MOHAMED
`MOHAMUD, AKA Mohamed
`Khadar, AKA Sheikh Mohamed,
`Defendant-Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`v.
`
`
`ISSA DOREH, AKA Sheikh Issa,
`Defendant-Appellant.
`
`
`
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`v.
`
`
`BASAALY SAEED MOALIN, AKA
`Basal, AKA Muse Shekhnor
`Roble,
`
`Defendant-Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`No. 13-50572
`
`D.C. No.
`3:10-cr-04246-JM-1
`
`
`
`
`
`
`No. 13-50578
`
`D.C. No.
`3:10-cr-04246-JM-2
`
`No. 13-50580
`
`D.C. No.
`3:10-cr-04246-JM-3
`
`
`
`v.
`
`
`MOHAMED MOHAMED
`MOHAMUD, AKA Mohamed
`Khadar, AKA Sheikh Mohamed,
`Defendant-Appellant.
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`v.
`
`
`ISSA DOREH, AKA Sheikh Issa,
`Defendant-Appellant.
`
`
`
`2
`
`
`UNITED STATES V. MOALIN
`
`UNITED STATES OF AMERICA,
`Plaintiff-Appellee,
`
`
`
`
`
`v.
`
`No. 14-50051
`
`D.C. No.
`3:10-cr-04246-JM-4
`
`
`OPINION
`
`
`AHMED NASIR TAALIL
`MOHAMUD,
`Defendant-Appellant.
`
`Appeal from the United States District Court
`for the Southern District of California
`Jeffrey T. Miller, District Judge, Presiding
`
`Argued and Submitted November 10, 2016
`Pasadena, California
`
`Filed September 2, 2020
`
`Before: Marsha S. Berzon and Jacqueline H. Nguyen,
`Circuit Judges, and Jack Zouhary,* District Judge.
`
`Opinion by Judge Berzon
`
`
`
`
`
`* The Honorable Jack Zouhary, United States District Judge for the
`Northern District of Ohio, sitting by designation.
`
`
`
`
`
`
`UNITED STATES V. MOALIN
`
`3
`
`SUMMARY**
`
`Criminal Law
`
`
`
`
`The panel affirmed the convictions of four members of
`
`the Somali diaspora for sending, or conspiring to send,
`$10,900
`to Somalia
`to support a foreign
`terrorist
`organization, in an appeal that raised complex questions
`regarding the U.S. government’s authority to collect bulk
`data about its citizens’ activities under the auspices of a
`foreign intelligence investigation, as well as the rights of
`criminal defendants when the prosecution uses information
`derived from foreign intelligence surveillance.
`
`The panel held that the government may have violated
`
`the Fourth Amendment when it collected the telephony
`metadata of millions of Americans, including at least one of
`the defendants, pursuant
`to
`the Foreign Intelligence
`Surveillance Act (FISA), but that suppression is not
`warranted on the facts of this case. Having carefully
`reviewed the classified FISA applications and all related
`classified information, the panel was convinced that under
`established Fourth Amendment standards, the metadata
`collection, even if unconstitutional, did not taint the evidence
`introduced by the government at trial. The panel wrote that
`to the extent the public statements of government officials
`created a contrary impression, that impression is inconsistent
`with the contents of the classified record.
`
`
`
`** This summary constitutes no part of the opinion of the court. It
`has been prepared by court staff for the convenience of the reader.
`
`
`
`UNITED STATES V. MOALIN
`
`4
`
`The panel rejected the government’s argument that the
`
`defendants
`lacked standing
`to pursue
`their statutory
`challenge to the (subsequently discontinued) metadata
`collection program. On the merits, the panel held that the
`metadata collection exceeded the scope of Congress’s
`authorization in 50 U.S.C. § 1861, which required the
`government to make a showing of relevance to a particular
`authorized investigation before collecting the records, and
`that the program therefore violated that section of FISA. The
`panel held that suppression is not clearly contemplated by
`section 1861, and there is no statutory basis for suppressing
`the metadata itself. The panel’s review of the classified
`record confirmed that the metadata did not and was not
`necessary to support the requisite probable cause showing
`for the FISA Subchapter I warrant application in this case.
`The panel wrote that even if it were to apply a “fruit of the
`poisonous tree” analysis, it would conclude that evidence
`from the government’s wiretap of defendant Moalin’s phone
`was not the fruit of the unlawful metadata collection. The
`panel wrote that if the statements of the public officials
`created a contrary impression, that impression is inconsistent
`with the facts presented in the classified record.
`
`The panel confirmed that the Fourth Amendment
`
`requires notice to a criminal defendant when the prosecution
`intends to enter into evidence or otherwise use or disclose
`information obtained or derived from the surveillance of that
`defendant conducted pursuant to the government’s foreign
`intelligence authorities. The panel did not decide whether
`the government failed to prove any required notice in this
`case because the lack of such notice did not prejudice the
`defendants.
`
`
`
`
`5
`
`UNITED STATES V. MOALIN
`
`
`
`The panel held that evidentiary rulings challenged by the
`
`defendants did not,
`individually or
`cumulatively,
`impermissibly prejudice the defense.
`
`The panel held that sufficient evidence supported
`
`defendant Doreh’s convictions.
`
`
`
`COUNSEL
`
`
`Joshua L. Dratel (argued), Joshua Dratel P.C., New York,
`New York; Alexander A. Abdo (argued), Jameel Jaffer,
`Patrick Toomey, and Brett Max Kaufman, American Civil
`Liberties Union, New York, New York; David J. Zugman,
`Burcham & Zugman, San Diego, California; Elizabeth
`Armena Missakian, Law Office of Elizabeth A. Missakian,
`San Diego, California; Benjamin L. Coleman, Coleman &
`Balogh LLP, San Diego, California; for Defendants-
`Appellants.
`
`Jeffrey M. Smith (argued), Appellate Counsel; John P.
`Carlin, Assistant Attorney General; National Security
`Division, United States Department of Justice, Washington,
`D.C.; Caroline P. Han, Assistant United States Attorney;
`United States Attorney’s Office, San Diego, California; for
`Plaintiff-Appellee.
`
`Michael Price, Brennan Center for Justice, New York, New
`York; Faiza Patel, Brennan Center for Justice at New York
`University School of Law, New York, New York; Alan
`Butler, Electronic Privacy Information Center (EPIC),
`Washington, D.C.; David M. Porter, Co-Chair, NACDL
`Amicus Committee; Sacramento, California; Bruce D.
`Brown, Katie Townsend, and Hannah Bloch-Wehba,
`Reporters Committee for Freedom of the Press, Washington,
`
`
`
`UNITED STATES V. MOALIN
`
`6
`
`D.C.; Michael Filipovic, Federal Public Defender, Seattle,
`Washington; Tony Gallagher, Executive Director, Federal
`Defenders of Montana, Great Falls, Montana; Lisa Hay,
`Federal Public Defender, Portland, Oregon; Heather Erica
`Williams, Federal Public Defender, Sacramento, California;
`Steven Gary Kalar, Federal Public Defender, San Francisco,
`California; Hilary Potashner, Federal Public Defender, Los
`Angeles, California; Reuben Cahn, Executive Director,
`Federal Defenders of San Diego Inc., San Diego, California;
`Jon M. Sands, Federal Public Defender, Phoenix, Arizona;
`Rich Curtner, Federal Public Defender, Anchorage, Alaska;
`John T. Gorman, Federal Public Defender, Mong Mong,
`Guam; Peter Wolff, Federal Public Defender, Honolulu,
`Hawaii; Samuel Richard Rubin, District of
`Idaho
`Community Defender, Boise, Idaho; R.L. Valladares,
`Federal Public Defender, Las Vegas, Nevada; for Amici
`Curiae Brennan Center for Justice, American Library
`Association, Electronic Privacy
`Information Center,
`Freedom to Read Foundation, National Association of
`Criminal Defense Lawyers, Ninth Circuit Federal and
`Community Defenders, and Reporters Committee for
`Freedom of the Press.
`
`
`
`OPINION
`
`BERZON, Circuit Judge:
`
`INTRODUCTION
`
`Four members of the Somali diaspora appeal from their
`convictions for sending, or conspiring to send, $10,900 to
`Somalia to support a foreign terrorist organization. Their
`appeal raises complex questions regarding
`the U.S.
`government’s authority to collect bulk data about its
`
`
`
`7
`
`UNITED STATES V. MOALIN
`
`
`
`the auspices of a foreign
`citizens’ activities under
`intelligence investigation, as well as the rights of criminal
`defendants when the prosecution uses information derived
`from foreign intelligence surveillance. We conclude that the
`government may have violated the Fourth Amendment and
`did violate the Foreign Intelligence Surveillance Act
`(“FISA”) when it collected the telephony metadata of
`millions of Americans, including at least one of the
`defendants, but suppression is not warranted on the facts of
`this case. Additionally, we confirm that the Fourth
`Amendment requires notice to a criminal defendant when the
`prosecution intends to enter into evidence or otherwise use
`or disclose
`information obtained or derived
`from
`surveillance of that defendant conducted pursuant to the
`government’s foreign intelligence authorities. We do not
`decide whether the government failed to provide any
`required notice in this case because the lack of such notice
`did not prejudice the defendants. After considering these
`issues and several others raised by the defendants, we affirm
`the convictions in all respects.
`
`BACKGROUND1
`
`I.
`
`Somalia’s turbulent recent history forms the backdrop
`for this case. After military dictator Siad Barre was ousted in
`1991, the country spiraled into civil war. Fighting between
`rival warlords led to a humanitarian crisis in Mogadishu,
`Somalia’s capital, and other parts of the country. An
`estimated 30,000 people died in Mogadishu alone, and
`hundreds of thousands more were displaced. As the war
`
`1 All the factual information presented in this opinion comes from
`unclassified or declassified sources.
`
`
`
`UNITED STATES V. MOALIN
`
`8
`
`continued, its impact on the populace was exacerbated by
`recurring periods of severe drought and famine.
`
`In 2004, an interim government for Somalia, the
`Transitional Federal Government (“TFG”), was established
`in Kenya. Although
`the TFG
`received significant
`international support, it faced widespread distrust and
`opposition in Somalia. The TFG installed itself in Somalia
`with the protection of Ethiopian military forces, which
`occupied Somalia beginning in 2006. Somali opposition to
`the TFG and the Ethiopian occupation developed into a
`broad-based, violent insurgency undertaken by a variety of
`groups with disparate agendas.
`
`One element of the insurgency was a group called “al-
`Shabaab,” which means “the youth” in Arabic. Al-Shabaab
`used distinctive types of violence, such as improvised
`explosive devices and suicide bombings. In March 2008, the
`United States designated al-Shabaab a foreign terrorist
`organization. A key figure in al-Shabaab, Aden Hashi
`Ayrow, was killed in a U.S. missile strike on May 1, 2008.
`
`Many Somalis have fled the country. An estimated three
`million live abroad, creating a global Somali diaspora.
`Somalis abroad often
`remain actively engaged
`in
`developments in Somalia, and contributions from the
`diaspora are a critical source of financial support within the
`troubled country. As Somalia has no formal banking system,
`members of the diaspora who wish to send money back
`frequently rely on informal money transfer businesses called
`“hawalas.”
`
`II.
`
`(“Moalin”),
`Defendants Basaaly Saeed Moalin
`Mohamed Mohamed Mohamud (“M. Mohamud”), Issa
`
`
`
`9
`
`UNITED STATES V. MOALIN
`
`
`
`Doreh (“Doreh”), and Ahmed Nasir Taalil Mohamud
`(“Nasir Mohamud”) immigrated to the United States from
`Somalia years ago and lived in Southern California.2 Moalin
`and Nasir Mohamud were taxicab drivers; M. Mohamud was
`an imam at a mosque; and Doreh worked at Shidaal Express,
`a hawala.
`
`Between October 2010 and June 2012, the United States
`(“the government”) charged defendants in a five-count
`indictment with conspiring to send and sending $15,900 to
`Somalia between January and August of 2008 to support al-
`Shabaab.3 The charges against all four defendants were:
`conspiracy to provide material support to terrorists, in
`violation of 18 U.S.C. § 2339A(a); conspiracy to provide
`material support to a foreign terrorist organization, in
`violation of 18 U.S.C. § 2339B(a)(1); and conspiracy to
`launder monetary instruments, in violation of 18 U.S.C.
`§ 1956(a)(2)(A) and (h). Moalin, M. Mohamud, and Doreh
`were charged with an additional count of providing material
`support to a foreign terrorist organization, in violation of
`18 U.S.C. § 2339B(a)(1) and (2), and Moalin was charged
`with a further count of conspiracy to provide material
`support to terrorists in violation of 18 U.S.C. § 2339A(a),
`based on his alleged provision of a house in Somalia to
`members of al-Shabaab.
`
`Shortly after filing the initial indictment, the government
`filed notice that it intended to use or disclose in the
`proceedings “information obtained or derived
`from
`
`
`2 Moalin and Doreh are U.S. citizens, M. Mohamud has refugee
`status, and Nasir Mohamud has a visa.
`
`3 At trial, the government sought only to prove that defendants had
`sent $10,900 to support al-Shabaab.
`
`
`
`UNITED STATES V. MOALIN
`
`10
`
`electronic surveillance conducted pursuant to the authority
`of the Foreign Intelligence Surveillance Act.” At trial, the
`government’s principal evidence against defendants
`consisted of a series of recorded calls between Moalin, his
`codefendants, and individuals in Somalia, obtained through
`a wiretap of Moalin’s phone. The government obtained
`access to Moalin’s calls after receiving a court order under
`FISA Subchapter I, 50 U.S.C. §§ 1801–1812. Several of the
`recorded calls involved a man who went by “Shikhalow”
`(sometimes spelled “Sheikalow”) or “Majadhub,” whom the
`government contends was Ayrow, the important al-Shabaab
`figure. In addition to the intercepted phone calls, the
`government
`introduced
`records of money
`transfers
`completed by Shidaal Express, the hawala where Doreh
`worked.
`
`In a recorded call from December 2007, Shikhalow
`requested money from Moalin for “rations.” The two men
`also discussed other fundraising efforts relating to a school.
`Moalin then spoke with Doreh, reporting that “[o]ne dollar a
`day per man” was needed for forces stationed “where the
`fighting [is] going on.” Moalin also spoke with Nasir
`Mohamud, telling him that money was needed for “the
`young men who are firing the bullets” and that, within the
`last month, “these men cut the throats of 60” Ethiopians and
`destroyed up to five vehicles.
`
`Ten days later, Moalin called Shikhalow to tell him that
`he had sent $3,300 using the recipient name “Yusuf
`Mohamed Ali.” Transaction records from the Shidaal
`Express reveal two transfers of $1,950 each to “yusuf
`mohamed ali” from “Duunkaal warsame warfaa” and “safiya
`Hersi.” Two days later, Moalin called Shikhalow again, and
`Shikhalow told him he had “received the three.” Moalin also
`offered Shikhalow the use of one of his houses in Somalia,
`
`
`
`UNITED STATES V. MOALIN
`
`
`
`which, Moalin noted, had an attic suitable for hiding
`documents and weapons. A half-hour after making the call
`to Shikhalow, Moalin told another acquaintance he “was
`talking to the man who is in charge of the youth.”
`
`11
`
`Later, in January 2008, Moalin called Shikhalow again,
`urging him to allow another group to handle “overall
`politics” while Shikhalow dealt with “military matters.”
`Shikhalow disagreed, stating, “we, the Shabaab, have a
`political section, a military section and a missionary
`section.” Shikhalow recounted recent incidents in which his
`group had planted a landmine and launched mortar shells at
`the presidential palace, and requested more money “to
`support the insurgent.”
`
`Communications between Moalin and Shikhalow
`continued through April 2008, during which time several
`money transfers were made to “yusuf mohamed ali,”
`“YUSUF MOHAMED ALI,” “DUNKAAL MOHAMED
`YUSUF,” and “mohamed yusuf dunkaal.” Ayrow was killed
`on May 1, 2008. A week later, Moalin told an acquaintance
`that he did not want “the assistance and the work that we
`were performing” to stop, even though “the man that we
`used to deal with is gone.”
`
`In July 2008, a senior operational figure in al-Shabaab
`gave Moalin contact information for Omar Mataan. Later
`that day, Moalin got in touch with Mataan and promised to
`send money. The following week, Moalin spoke with Nasir
`Mohamud, reporting
`that
`they were being “closely
`watched,” but that they could still support “the orphans” and
`“people in need” and would “go under that pretense now.”
`Shidaal Express records show a series of transfers over the
`
`
`
`UNITED STATES V. MOALIN
`
`12
`
`next few weeks, including one to “Omer Mataan” and
`another to “Omer matan.”4
`
`Defendants did not dispute that they sent money to
`Somalia through Shidaal Express, but they did dispute that
`the money was intended to support al-Shabaab. They
`maintained that Shikhalow was not Ayrow but a local police
`commissioner, and that their money went to support the
`work of regional administrations governing in the absence of
`an effective central government. Moalin also presented
`evidence that he supported humanitarian causes in Somalia
`during the time period of the indictment.
`
`In February 2013, the jury convicted defendants on all
`counts.
`
`III.
`
`Before trial, Moalin moved to suppress, among other
`things, “all interceptions made and electronic surveillance
`conducted pursuant to [FISA], 50 U.S.C. § 1801, et seq., and
`any fruits thereof, and/or for disclosure of the underlying
`applications for FISA warrants.” Moalin contended that
`information in the government’s applications for the FISA
`wiretap may have been “generated by illegal means”—that
`is, that the government may have violated the Fourth
`Amendment or its statutory authority under FISA in
`collecting information supporting the FISA warrants. The
`district court denied Moalin’s suppression motion and did
`not grant security-cleared defense counsel access to the
`documents supporting the FISA orders.
`
`
`4 We review the call transcripts in greater deal in Part V of the
`Discussion section of the opinion, infra pp. 53–57.
`
`
`
`
`
`
`UNITED STATES V. MOALIN
`
`13
`
`Two days before trial, the prosecution disclosed an email
`from a redacted FBI email address to the government’s
`Somali linguist, who was monitoring Moalin’s phone calls
`during the wiretap. The email said: “We just heard from
`another agency that Ayrow tried to make a call to Basaaly
`[Moalin] today, but the call didn’t go through. If you see
`anything today, can you give us a shout? We’re extremely
`interested in getting real-time info (location/new #’s) on
`Ayrow.”
`
`Months after the trial, in June 2013, former National
`Security Agency (“NSA”) contractor Edward Snowden
`made public the existence of NSA data collection programs.
`One such program, conducted under FISA Subchapter IV,
`involved the bulk collection of phone records, known as
`telephony metadata, from telecommunications providers.
`Other programs, conducted under the FISA Amendments
`Act of 2008,
`involved
`the collection of electronic
`communications, such as email messages and video chats,
`including those of people in the United States.
`
`Subsequent statements of public officials defending the
`telephony metadata collection program averred that the
`program had played a role in the government’s investigation
`of Moalin. These statements reported that the FBI had
`previously closed an investigation focused on Moalin
`without bringing charges, then reopened that investigation
`based on information obtained from the metadata program.
`
`For instance, in a hearing before the House Permanent
`Select Committee on Intelligence held shortly after the
`Snowden disclosures, then-FBI Deputy Director Sean Joyce
`described a post-9/11 investigation conducted by the FBI
`that initially “did not find any connection to terrorist activity.
`Several years later, under [FISA Subchapter IV], the NSA
`provided us a telephone number only in San Diego that had
`
`
`
`UNITED STATES V. MOALIN
`
`14
`
`indirect contact with an extremist outside the United States.”
`Joyce explained that the FBI “served legal process to
`identify who was the subscriber to this telephone number,”
`then, after “further investigation and electronic surveillance
`that we applied specifically for this U.S. person with the
`FISA Court, we were able to identify co-conspirators, and
`we were able to disrupt” their financial support to a Somali
`designated terrorist group. According to Joyce, “if [the FBI]
`did not have the tip from NSA, [it] would not have been able
`to reopen that investigation.” In another congressional
`hearing, Joyce specifically named Moalin as the target of the
`investigation.
`
`On September 30, 2013, defendants filed a motion for a
`new
`trial. Defendants argued
`that
`the government’s
`collection and use of Moalin’s telephony metadata violated
`the Fourth Amendment, and that the government had failed
`to provide notice of the metadata collection or of any
`surveillance of Moalin it had conducted under the FISA
`Amendments Act, including, potentially, the surveillance
`referred to in the email to the linguist. The district court
`denied the motion, concluding that “public disclosure of the
`NSA program adds no new facts to alter the court’s FISA . . .
`rulings,” and that the telephony metadata program did not
`violate the Fourth Amendment. United States v. Moalin, No.
`10-CR-4246 JM, 2013 WL 6079518, at *4, *8 (S.D. Cal.
`Nov. 18, 2013).
`
`This appeal followed. On appeal, defendants continue to
`challenge the metadata collection and the lack of notice of
`both
`the metadata collection and of any additional
`surveillance not disclosed by the government. They also
`make arguments regarding the government’s obligation to
`produce exculpatory evidence;
`the district court’s
`evidentiary rulings; and the sufficiency of the evidence to
`
`
`
`UNITED STATES V. MOALIN
`
`
`
`convict Doreh. We present the facts relating to each
`argument as we analyze it.
`
`15
`
`DISCUSSION
`
`I. The Telephony Metadata Collection Program
`
`telephony metadata collection
`The government’s
`program was authorized in a series of classified orders by the
`FISA Court under FISA Subchapter IV, the “business
`records” subchapter.5 See In re Application of the FBI for an
`Order Requiring the Prod. of Tangible Things from
`[redacted], No. BR 13-80, 2013 WL 5460137, at *1 (FISA
`Ct. Apr. 25, 2013). These orders
`required major
`telecommunications providers
`to
`turn over
`to
`the
`government on an “ongoing daily” basis a “very large
`volume” of their “call detail records.” In re Application of
`the FBI for an Order Requiring the Prod. of Tangible Things
`from [redacted], No. BR 13-109, 2013 WL 5741573, at *1
`(FISA Ct. Aug. 29, 2013) (“In re Application II”).
`Specifically, providers were ordered to produce “all call
`detail
`records or
`‘telephony metadata’
`. . .
`for
`communications (i) between the United States and abroad;
`or (ii) wholly within the United States, including local
`telephone calls.” Id. at *10. These records included
`
`5 The FISA Court was established by Congress to entertain
`applications by the government to take investigative actions authorized
`by FISA. 50 U.S.C. § 1803(a). Broadly, “FISA authorizes the federal
`government to engage in four types of investigative activity [in the
`United States]: electronic surveillance targeting foreign powers and
`agents of foreign powers; physical searches targeting foreign powers and
`agents of foreign powers; the use of pen registers and trap-and-trace
`devices . . . ; and court orders compelling the production of tangible
`things in connection with certain national security investigations.” David
`Kris & J. Douglas Wilson, National Security Investigations and
`Prosecutions § 4:2 (3rd ed. 2019).
`
`
`
`UNITED STATES V. MOALIN
`
`16
`
`information such as the phone numbers involved in a call and
`the time and duration of the call, but not the voice content of
`any call. Id. at *1 n.2.
`
`The court orders authorized the NSA to compile the
`records into a database and to query the database under
`certain conditions to obtain foreign intelligence information.
`See id. at *1. During the time period relevant to this case, the
`government was permitted to search the database when
`certain NSA officials determined
`that “reasonable,
`articulable suspicion” existed connecting a specific selection
`term—for example, a particular phone number—with “one
`of the identified international terrorist organizations.” Id.
`The government was also allowed to search phone numbers
`within three “hops” of that selector, i.e., the phone numbers
`directly in contact with a selector, the numbers that had been
`in contact with those numbers, and the numbers that had
`been in contact with those numbers. In re Application of the
`FBI for an Order Requiring the Prod. of Tangible Things
`from [redacted], No. BR 14-96, 2014 WL 5463290, at *2 &
`n.2 (FISA Ct. June 19, 2014).
`
`the metadata program
`Snowden’s disclosure of
`prompted significant public debate over the appropriate
`scope of government surveillance. In June 2015, Congress
`passed the USA FREEDOM Act, which effectively ended
`the NSA’s bulk telephony metadata collection program. Pub.
`L. No. 114-23, 129 Stat. 268 (codified at 50 U.S.C. § 1861).
`The Act prohibited further bulk collection of phone records
`after November 28, 2015. Id.; see Smith v. Obama, 816 F.3d
`1239, 1241 (9th Cir. 2016). Besides ending the bulk
`collection program, Congress also established new reporting
`requirements relating to the government’s collection of call
`detail records. Pub. L. No. 114-23, § 601, 129 Stat. at 291.
`
`
`
`
`
`
`UNITED STATES V. MOALIN
`
`17
`
`Defendants contend that the discontinued metadata
`program violated both the Fourth Amendment and FISA
`Subchapter IV, under which it was authorized. They argue
`that the “fruits” of the government’s acquisition of Moalin’s
`phone records should therefore have been suppressed.
`According to defendants, those fruits included the phone
`records themselves and the evidence the government
`obtained through its subsequent wiretap of Moalin’s phone.
`
`A.
`
`Moalin contends that the metadata collection violated his
`Fourth Amendment “right . . . to be secure . . . against
`unreasonable searches and seizures.” U.S. Const. amend. IV.
`A person may invoke the protections of the Fourth
`Amendment by showing he had “an actual (subjective)
`expectation of privacy,” and “the expectation [is] one that
`society is prepared to recognize as ‘reasonable.’” Katz v.
`United States, 389 U.S. 347, 361 (1967) (Harlan, J.,
`concurring). Moalin asserts he had a reasonable expectation
`of privacy in his telephony metadata.
`
`The district court held, and the government argues, that
`this case is controlled by Smith v. Maryland, 442 U.S. 735
`(1979), which helped establish the so-called third-party
`doctrine in Fourth Amendment jurisprudence. Smith held
`that the government’s use of a pen register to record the
`numbers the defendant dialed from his home telephone did
`not constitute a Fourth Amendment search, because
`individuals have no reasonable expectation of privacy in
`information they voluntarily convey to the telephone
`company. Id. at 742–43. Smith relied on United States v.
`Miller, 425 U.S. 435 (1976), which had held that defendants
`had no legitimate expectation of privacy in their bank
`records. The government argues that the NSA’s collection of
`Moalin’s telephony metadata is indistinguishable, for Fourth
`
`
`
`UNITED STATES V. MOALIN
`
`18
`
`Amendment purposes, from the use of the pen register in
`Smith.
`
`There are strong reasons to doubt that Smith applies here.
`Advances in technology since 1979 have enabled the
`government to collect and analyze information about its
`citizens on an unprecedented scale. Confronting these
`changes, and recognizing that a “central aim” of the Fourth
`Amendment was “to place obstacles in the way of a too
`permeating police surveillance,” the Supreme Court recently
`declined to “extend” the third-party doctrine to information
`whose collection was enabled by new technology. Carpenter
`v. United States, 138 S. Ct. 2206, 2214, 2217 (2018) (quoting
`United States v. Di Re, 332 U.S. 581, 595 (1948)).
`
`Carpenter did not apply the third-party doctrine to the
`government’s acquisition of historical cell phone records
`from the petitioner’s wireless carriers. The records revealed
`the geographic areas in which the petitioner used his cell
`phone over a period of time. Id. at 2220. Citing the “unique
`nature of cell phone location information,” the Court
`concluded in Carpenter that “the fact that the Government
`obtained the information from a third party does not
`overcome [the petitioner’s] claim to Fourth Amendment
`protection,” because there is “a world of difference between
`the limited types of personal information addressed in Smith
`. . . and the exhaustive chronicle of location information
`casually collected by wireless carriers today.” Id. at 2219–
`20.
`
`There is a similar gulf between the facts of Smith and the
`NSA’s long-term collection of telephony metadata from
`Moalin and millions of other Americans. In Smith, a woman
`was robbed and gave the police a description of the robber
`and of a car she saw nearby. 442 U.S. at 737. After the
`robbery, the woman received “threatening and obscene
`
`
`
`19
`
`UNITED STATES V. MOALIN
`
`
`
`phone calls from a man identifying himself as the robber.”
`Id. Police later spotted a man and car matching the robber’s
`description and traced the license plate number to Smith. Id.
`Without obtaining a warrant, they asked the telephone
`company to install a “pen register,” a device that would
`record the numbers dialed from Smith’s home telephone. Id.
`The day the pen register was installed it recorded a call from
`Smith’s home to the home of the robbery victim. Id. Based
`on that and other evidence, police obtained a warrant to
`search Smith’s home and arrested him two days later. Id.
`
`Holding that the use of the pen register did not constitute
`a “search” for Fourth Amendment purposes, id. at 745–46,
`the Court reasoned, first, that it was unlikely “that people in
`general entertain any actual expectation of privacy in the
`numbers they dial,” id. at 742. Second, “even if [Smith] did
`harbor some subjective expectation that the phone numbers
`he dialed would remain private, this expectation is not ‘one
`that society is prepared to recognize as “reasonable.”’” Id.
`at 743 (quoting Katz, 389 U.S. at 361). Smith had
`“voluntarily conveyed numerical
`information
`to
`the
`telephone company” and in so doing had “assumed the risk
`that the company would reveal to police the numbers he
`dialed.” Id. at 744.
`
`The distinctions between Smith and this case are legion
`and most probably constitutionally significant. To begin
`with, the type of information recorded in Smith was
`“limited” and of a less “revealing nature” than the telephony
`metadata at issue here. Carpenter, 138 S. Ct. at 2219. The
`pen register did not disclose the “identities” of the caller or
`of the recipient of a call, “nor whether the call was even
`completed.” Smith, 442 U.S. at 741 (quoting United States v.
`New York Tel. Co., 434 U.S. 159, 167 (1977)). In contrast,
`the metadata
`in
`this case
`included “comprehensive
`
`
`
`UNITED STATES V. MOALIN
`
`20
`
`communications routing information, including but not
`limited to session identifying information (e.g., originating
`and terminating telephone number, International Mobile
`station Equipment Identity (IMEI) number, International
`Mobile Subscriber Identity (IMSI) number, etc.), trunk
`identifier, telephone calling card numbers, and time and
`duration of call.” In re Application II, 2013 WL 5741573,
`at *1 n.2. “IMSI and IMEI numbers are unique numbers
`associated with
`a particular
`telephone user or
`communications device.” Br. of Amici Curiae Brennan
`Center for Justice 11. “A ‘trunk identifier’ provides
`information about where a phone connected to the network,
`revealing data
`that can
`locate
`the parties within
`approximately a square kilometer.” Id. at 11–12.
`
`Although the Smith Court perceived a significant
`distinction between the “contents” of a conversation and the
`phone number dialed, see 442 U.S. at 743, in recent years the
`distinction between content and metadata “has become
`increasingly untenable,” as Amici point out. Br. of Amici
`Curiae Brennan Center for Justice 6. The amount of
`metadata created and collected has increased exponentially,
`along with the government’s ability to analyze it. “Records
`that once would have revealed a few scattered tiles of
`information about a person now reveal an entire mosaic—a
`vibrant and constantly updating picture of the person’s life.”
`Klayman v. Obama, 957 F. Supp. 2d 1, 36 (D.D.C. 2013),
`vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015).
`According to the NSA’s former general cou
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