Seven months after his conviction, Basaaly Moalin’s defense attorney moved for a new trial (PDF), arguing that evidence collected about him under the government’s recently disclosed dragnet telephone surveillance program violated his constitutional and statutory rights. Moalin’s is the only thwarted "terrorist plot" against America that the government says also "critically" relied on the National Security Agency phone surveillance program, conducted under Section 215 of the Patriot Act.

The government’s response (PDF), filed on September 30th, is a heavily redacted opposition arguing that when law enforcement can monitor one person’s information without a warrant, it can monitor everyone’s information, “regardless of the collection’s expanse.” Notably, the government is also arguing that no one other than the company that provided the information—including the defendant in this case—has the right to challenge this disclosure in court.

The success of these arguments is critical to the government; the terrorist plot for which Moalin and three other defendants were convicted in February was sending about $8,500 to al-Shabaab, known most recently for the Kenyan Westgate mall attack. The money was sent in 2007 and 2008.

The United States government designated al-Shabaab—which means “The Youth"—a terrorist group in 2008, but the FBI’s extensive wiretapping of Moalin started about two months before that. FBI Deputy Director Sean Joyce recently revealed to Congress that the FBI had also conducted another investigation into Moalin's activities in 2003 and ultimately concluded that there was “no nexus to terrorism.” This evidence was kept from the defense during trial.

The government’s opposition to a new trial relies heavily on a recently declassified opinion from the Foreign Intelligence Surveillance Court, which concluded that “where one individual does not have a Fourth Amendment interest, grouping together a large number of similarly situated individuals cannot result in a Fourth Amendment interest springing into existence ex nihilo.”

In an e-mail interview for this piece, Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, said the government's arguments are consistent with how it has justified these programs in other places. “But one of the most interesting aspects of the response in the Moalin case is… to argue there’s no standing.” The government has always argued that there’s no reasonable expectation to privacy in information handed to a third party like your phone or Internet provider, commonly referred to as the "third-party doctrine." But Fakhoury says that in this case, the government is taking an even more aggressive stance. In essence, its argument is that “these records aren’t even Moalin’s to begin with so he can’t complain.”

Fakhoury disagrees “with the idea that the user has no standing to challenge the use of evidence that says something about him” and thinks the government undermines its own argument about who has standing to contest the evidence. “[T]hey want to use the phone records to prove a fact about Moalin but then claim that these records aren’t his.”

A history of terms

Legally speaking, both sides have an argument. The Supreme Court has broadly endorsed the third-party doctrine since a pivotal case in 1979, and many lower courts have treated digital-age information very similarly. This year, a federal court in Arizona found that the acquisition of 1.8 million IP addresses did not violate a defendant’s Fourth Amendment rights after specifically citing that 1979 case.

But Fourth Amendment analysis is dependent on what constitutes a “reasonable expectation of privacy,” which is an inherently fluid term that has proven to be a dividing line. Within a week of that Arizona decision, a federal court in Michigan found that a warrant was required to track cell phone location data over the course of seven months—even if such information was technically metadata to which third parties have access.

The Supreme Court’s ultimate guidance seems like an inevitability. While the ‘regardless of scope’ argument has proven an impossible hurdle for some defendants, the most recent Supreme Court case on point, US v. Jones, offers significant hope to privacy advocates. There, the government had a similar argument as in Moalin, which the Court thoroughly rebuffed: it argued that an officer could have followed the defendant the whole time without violating any constitutional rights. In Moalin, that’s analogous to saying that the government could have accessed any individual’s phone records without any problem, and therefore, with the help of new technology, it should be able to access every record. Five justices held (in minority and concurring opinions) that continual tracking of a single person over the course of 28 days, through GPS tracking, violated a person’s reasonable expectation of privacy, simply because people expect such comprehensive surveillance to be improbable based on cost to law enforcement alone.

After Jones

If the Supreme Court found a temporal limitation in Jones, could it find a breadth limitation in the Moalin case? Or is the government right this time, and one person's records really do equal those of 314 million people (in America alone)? The arguments could get even more complex: at least one scholar claims that the acquisition of documents for retroactive investigation was repugnant to the founders, and a prohibition on such tactics was built into the Fourth Amendment.

Many of these unresolved questions could be cleared up if Moalin’s case moves up the judicial totem pole.

Because Moalin is a criminal defendant and the government has taken the unique step of citing his case as the example of where this legally questionable dragnet surveillance program was critically important, he has the best standing argument possible. In a legal context, standing refers to a party's right to seek legal remedy from the courts, which depends on that party having suffered or reasonably fearing that they will suffer some kind harm. It's a critical issue that has regularly thwarted other challenges to national security laws, and it's an issue on which the government has founded its opposition.

Beyond the defense’s constitutional argument, the government’s opposition largely dodges the defense’s other rights-based claim: that Moalin’s statutory rights were also violated under the FISA Amendments Act of 2008 (and perhaps under other statutes on which the government based its surveillance, but which have not been revealed by the prosecution). For instance, Section 702 of the FISA Amendments Act provides authority for the attorney general and director of National Intelligence to authorize interception of communications of people reasonably believed to be outside the United States. However, if the evidence about Moalin was collected as part of the NSA's practice of collecting communications two or three hops from a non-US person, which seems likely considering that ultimately four people residing in the United States were convicted in this case, his case would also be an opportunity to challenge the NSA's interpretation that the law provides for such expansive collection. Alternatively, it’s possible that the government's substantive arguments on these fronts occurred behind black bars (PDF, see page 10).

The defense’s other major argument for a new trial stems from the prosecution’s decision not to provide a significant amount of evidence that the defense believes would have helped exonerate Moalin, like the 2003 investigation referenced above that concluded there wasn't a "nexus" to terrorism. Prior to trial, the defense was prevented from obtaining information about that previous investigation—both the conclusion and the information leading to it, as well as about the most recent investigation—by the prosecution and then the court, after the government asserted that revealing the classified information could endanger national security. Moalin’s attorney discovered that his client had been subject to the Section 215 program only after FBI Deputy Director Joyce testified to Congress. And prosecutors are required to provide evidence that favors the defendant or impugns the credibility of a witness.