NSA’s illegal mass surveillance did not help thwart terror plot, court says.
By Jon Brodkin – Sept 3, 2020 | Original Ars Technica article here.
The National Security Agency’s bulk collection of phone metadata from telecom providers was illegal, a federal appeals court ruled yesterday. The court also found that the phone-metadata collection exposed by former NSA contractor Edward Snowden was not necessary for the arrests of terror suspects in a case that the US government cited in defending the necessity of the surveillance program.
The ruling by the US Court of Appeals for the 9th Circuit upheld the 2013 convictions of "four members of the Somali diaspora for sending, or conspiring to send, $10,900 to Somalia to support a foreign terrorist organization." But the Somalis’ challenge of the NSA spying program yielded some significant findings. In part, the ineffectiveness of the phone-metadata collection helped ensure that the convictions would be upheld because the illegally collected metadata evidence wasn’t significant enough to taint evidence that was legally collected by the government. The government got what it needed from a wiretap of defendant Basaaly Saeed Moalin’s phone, not from the mass collection of metadata.
The court’s three-judge panel unanimously "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 [Foreign Intelligence Surveillance Act]," the ruling said.
The judges also wrote 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." But the judges didn’t make a ruling on the potential Fourth Amendment violation because it wasn’t necessary to decide the case. While "the Fourth Amendment requires notice to a criminal defendant" when prosecutors want to use evidence from surveillance at trial, the judges "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," the ruling said.
US admits metadata “not necessary”
The NSA’s bulk collection that "swept up the full call records of every customer of America’s biggest telephone companies," authorized by the USA Patriot Act in 2001, "was banned in 2015 as part of the USA Freedom Act," a Project on Government Oversight report notes. The program was replaced by a more targeted collection of phone-company records, which was reportedly halted in 2018.
Moalin has been disputing his conviction since shortly after Snowden’s revelations in 2013. As the Brennan Center for Justice said in November 2015, "Moalin is the only instance identified by the government where the NSA’s mass surveillance program has been used in a terrorism prosecution."
The NSA told Congress in 2013 that the Moalin case demonstrated the value of the mass phone-records collection. But in 2016, US government officials said in a filing at the 9th Circuit that Moalin’s telephony metadata "did not and was not necessary to support the requisite probable cause showing for the FISA Title I application."
In yesterday’s ruling, judges said that classified evidence confirmed that the metadata wasn’t necessary:
"Our review of the classified record confirms this representation. Even if we were to apply a "fruit of the poisonous tree" analysis, we would conclude, based on our careful review of the classified FISA applications and related information, that the FISA wiretap evidence was not the fruit of the unlawful metadata collection. Again, if the statements of public officials created a contrary impression, that impression is inconsistent with the facts presented in the classified record. Because the wiretap evidence was not "unlawfully acquired," suppression [of that evidence] is not warranted."
It’s not clear what evidence the government cited in its application for that wiretap because the application is classified. But the judges wrote that "under established Fourth Amendment standards, the metadata collection, even if unconstitutional, did not taint the evidence introduced by the government at trial."
Mass surveillance
Besides being illegal and ineffective, the NSA spying program violated the privacy of millions of Americans.
The judges wrote:
"[T]he NSA collected Moalin’s (and millions of other Americans’) telephony metadata on an ongoing, daily basis for years," .
Referring to a ruling from a different case on cell-phone location information, the 9th Circuit judges said that "telephony metadata, ‘as applied to individual telephone subscribers, particularly with relation to mobile phone services and when collected on an ongoing basis with respect to all of an individual’s calls… permit something akin to… 24-hour surveillance.’ This long-term surveillance, made possible by new technology, upends conventional expectations of privacy."
Judges noted that the NSA metadata-collection program caused a "public outcry" when it was revealed, for good reason:
"Also problematic is the extremely large number of people from whom the NSA collected telephony metadata, enabling the data to be aggregated and analyzed in bulk… A couple of examples illustrate this point: A woman calls her sister at 2:00 a.m. and talks for an hour. The record of that call reveals some of the woman’s personal information, but more is revealed by access to the sister’s call records, which show that the sister called the woman’s husband immediately afterward. Or, a police officer calls his college roommate for the first time in years. Afterward, the roommate calls a suicide hotline. These are simple examples; in fact, metadata can be combined and analyzed to reveal far more sophisticated information than one or two individuals’ phone records convey."