Appeals court hears warrantless spying case. Could it change surveillance law?

An Oregon man convicted for a bomb plot says federal agents obtained evidence via what he argues is an unconstitutional surveillance program.

In a case with wide-reaching implications, a federal appeals court is set to hear arguments Wednesday on whether the US government’s warrantless electronic surveillance program violates the Constitution's privacy protections.

Somali-American Mohamed Mohamud is challenging his conviction for attempting to detonate a bomb during a 2010 Christmas tree-lighting ceremony in Portland, Ore., arguing that he was entrapped by federal agents posing as members of Al Qaeda. The bomb was actually fake, and part of an undercover operation. 

On Wednesday, a three-judge panel of the Ninth Circuit Court of Appeals will hear Mr. Mohamud's argument that federal agents gathered evidence against him unconstitutionally, through programs intended for surveillance of foreign targets, not American citizens. Mohamed is a naturalized US citizen.  

After his 2012 conviction, Mohamud and his lawyer were informed that evidence against him had been collected using the Foreign Intelligence Surveillance Act (FISA), a controversial law amended in 2008 that was originally intended to allow the government to collect information on foreign nationals.

Since then, many civil liberties groups have charged that FISA, especially a portion known as Section 702, has been used to justify warrantless electronic surveillance programs that gathered up many Americans' phone and internet records.

It's still too early to tell, but the case could challenge how the government obtains such information, says Brian Owsley, an assistant professor of law at the University of North Texas at Dallas.

"There have been arguments that these programs cannot be applied to US citizens. Arguably, this is a warrantless search that violates the constitution," writes Professor Owsley, a former federal magistrate judge in Texas, in an email to The Christian Science Monitor.

"If that is determined, then any evidence from this search could be excluded and lead to the conviction being overturned and a new conviction [made] much more difficult or impossible," he adds.

Lawyers for Mohamud are arguing that Section 702 bars the government from retaining and accessing the communications of US citizens, meaning the government's actions in obtaining evidence against him are potentially unconstitutional.

Two of the surveillance programs disclosed by former NSA contractor Edward Snowden, Prism and Upstream, were enabled by Section 702, Reuters reports. The Prism program involves warrantless collection of users' communications from large tech firms, including Google, Apple and Facebook, according to the American Civil Liberties Union (ACLU), which has filed a friend-of-the-court brief challenging the surveillance practices.

Upstream allows the agency to search the internet “backbone” inside the US, letting the agency search for particular terms that are associated with its targets. Information gathered through the programs is stored in databases that FBI agents can search using individual names and phone numbers, according to the ACLU. 

"The surveillance challenged in this case has implications for the privacy of all Americans. Section 702 gives the government virtually unfettered access to all the international phone calls and emails of US citizens and residents," said Patrick Toomey, a staff attorney at the ACLU, in a statement.

When Mohamud was sentenced to 30 years in prison in 2014 for attempting to detonate the fake bomb, US District Court Judge Garr M. King called the intended crime "horrific," and Justice Department officials praised the investigation for catching what they called a "home-grown extremist."

"This case highlights how the use of undercover operations against would-be terrorists allows us to engage and disrupt those who wish to commit horrific acts of violence against the innocent public," John Carlin, the department's assistant attorney general for national security, said at the time.

But Mohamud’s lawyers had long pushed for fuller disclosure of what programs were used, as they had argued that federal agents had sought to entrap him. Since he was only 19 at the time of the bombing, they argued, agents may have taken advantage of his youth.

"The teenaged Mr. Mohamud does not appear to meet the definitions of 'foreign power,'" his lawyers wrote in a 2011 court filing to suppress evidence obtained using FISA. "With respect to 'agent of a foreign power,' FISA's distinction between United States persons and non-United States persons provides a far more limited authority to conduct surveillance and searches of United States persons." 

In addition, the ACLU argues in its brief, the government has never provided details of how many Americans' electronic records it has collected. 

That number could potentially be substantial. In 2014, for example, the government reported that it monitored the communications of 92,707 targets in 2014 using a single order from the highly secretive Foreign Intelligence Surveillance Court, the civil liberties group adds.

Professor Owsley says that regardless of how the court rules, the case throws surveillance issues into sharp relief.

In conjunction with Mr. Snowden's disclosures and a slew of media reports, the case could affect Congress's upcoming decision to reauthorize Section 702 by Dec. 31, 2017 or let it expire.

"I think many Americans across the political spectrum are wary of this type of surveillance," Owsley writes to the Monitor. "Judges are people too, and this broader view could possibly influence the outcome."