Case: Doc 374 Filed: 09/11/18 1 of 53. Page D#: 9744

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

United States of America,
Case No. 3:15-cr-358
Plaintiff

v. UNCLASSIFIED MEMORANDUM
OPINION
Yahya Farooq Mohammad, et al.,

Defendants

Before me are several motions.I First, Defendants have requested the disclosure of
Foreign Intelligence Surveillance Act material and the suppression of the evidence
obtained or derived from electronic surveillance and physical searches conducted under FISA
Titles I and (Doc. No. 148 at 1; Doc. No. 156 at 1.) These motions are denied.

Next, Defendants request the suppression of evidence obtained or derived from
acquisitions made under ISA Section 702. (Doc. No. 146 at Defendants have also
requested the disclosure of the ISA Section 702 materials relevant to this case. (Doc; No. 140 at
1.) These Section 702 motions are also denied.

And lastly, Defendants have requested an order directing the Government to provide
notice and additional information about the surveillance it undertook in preparing this case.

(Doc. No. 131 at 1.) This motion is denied as well.

 

1 All but one of the motions were filed by Yahya Farooq Mohammad, Who has since pleaded guilty. The
other Defendants have, with limited exceptions, joined Farooq?s motions and adopted his arguments. (See
Doc. Nos. 142, 143, 145, 155, 156, 160.) Sultane Roome Salim brings the remaining motion, (Doc. No.
156 at which Asif Ahmed Salim has joined, (Doc. No. 160 at 2).

 

 

 

 

Case: Doc 374 Filed: 09/11/18 2 of 53. PageID 9745

I.

Defendants Yahya Farooq Mohammad, Ibrahim Zubair Mohammad, Sultane Roome
Salim, and Asif Ahmed Salim were indicted on September 30, 2015, and charged with (Count 1)
conspiracy to provide and conceal material support to terrorists, in Violation of 18 U.S.C. 
(Count 2) providing material support to terrorists, in violation of 18 U.S.C. 
(Count 3) conspiracy to commit bank fraud, in violation of 18 U.S.C. 1349 (brought against
Farooq and Ibrahim only); and (Count 4) conspiracy to obstruct justice, in violation of 18 U.S.C.
1512(k). (Doc. No. 1 at 12?u72.)

The Government accuses Defendants of conspiring to provide, and actua11y providing,
funds and other material support to Anwar al-Awlaki for the preparation and execution of
terrorist attacks and killings. (See Doc. No. 1 at 12, 68.) The Government contends Defendants
conspired to obstruct its investigation into their illicit fundraising by making false statements to
the FBI and destroying or concealing records. (Id. at 65?67, 71?72.) And as to Farooq and
Ibrahim, the Government additionally alleges that they conspired to raise money for al?Awlaki
through various fraudulent credit card and PayPal transactions. (Id. at 68?71.)

arooq has since pleaded guilty to the charges against him. (Doc. No. 284 at 1.) The other
Defendants are scheduled to be tried on April 23, 2018. (Doc. No. 259 at 1.)

On December 21, 2015, the Government noti?ed Defendants that it intends to offer into
evidence, or otherwise use or disclose in any proceeding in this case, information obtained or
derived from electronic surveillance under FISA Title I (as to Sultane and Asif), (ii) physical
searches under FISA Title (as to Ibrahim, Sultane, and Asif), and acquisitions under FISA

Section 702 (as to Ibrahim and Asit) under FISA. (Sea Doc. Nos. 28, 29, 30.)

 

 

Case: Doc 374 Filed: 09/11/18 3 of 53. PageID 9746

In response to these notices, Defendants have ?led several motions. In motions directed

 

at FISA Titles I and 111 (Doc. Nos. 148, 156), Defendants have moved for me to review the

Government?s applications for surveillance and searches, (ii) the disclosure of the
Government?s applications for surveillance and searches, an evidentiary hearing pursuant to
Franks v. Delaware, 438 US. 154 (1978), and (iv) the suppression of any evidence obtained or
derived from illegally authorized. or implemented surveillance or searches. (See Doc. No. 150 at
3; Doc. No. 156 at 1.)

In motions directed at FISA Section 702 (Doc. Nos. 140, 146), Defendants have
requested the disclosure of the Section 702 materials relevant to this case and (ii) the
suppression of all evidence obtained or derived from acquisitions under Section 702. (Doc. No.
140 at 1; Docmotion aimed broadly at all of the Government?s surveillance and evidence-
gathering methods (Doc. No. 131), Defendants request an order directing the Government to
provide notice of 1) each surveillance technique it used to obtain information about
Defendant?s communications or activities in its investigation; (2) the timing or duration of that
surveillance; (3) the legal authority relied upon; and (4) the evidence obtained or derived from
that surveillance.? (Doc. No. 131 at 1.)

The Government opposes Defendants motions and has responded by ?ling classified and
unclassi?ed memoranda in opposition. The Government has also ?led an af?davit signed by the
Attorney General in which she declared under oath that ?it would harm the national security of
the United States to disclose or hold an adversary hearing with respect to the FISA Materials?. in
this matter. (Doc. No. 190 ll 3.) The ?ling of this af?davit triggers a statutory mandate directing

me to ?review in camera and ex parte the application, order, and such other materials relating to

Case: Doc 374 Filed: 09/11/18 4 of 53. PageID 9747

the surveillance as may be necessary to determine Whether the surveillance of the
aggrieved person was lawfully authorized and conducted.? 50 U.S.C. 1806(1); see also id. 
1881e(a).

I have conducted the required in camera, ex parte review of the FISA materials and now
address Defendants? motions. I ?rst consider the motions for disclosure and suppression under
FISA Titles I and 111 (Doc. Nos. 148, 156).

II.

Enacted in 1978, the Foreign Intelligence Surveillance Act, establishes a statutory
framework under which executive branch agencies may collect foreign intelligence information.
See UnitedStates v. Aziz, 228 F. Supp. 3d 363, 366 (M.D. Pa. 2017); see 50 U.S.C. 1801, et-
seq. As part of this framework, Congress created two specialized courts: the Foreign Intelligence
Surveillance Court and the Foreign Intelligence Surveillance Court of Review
50 U.S.C. 1803. FISA authorizes the Chief Justice of the United States to designate
eleven United States District Judges to sit as judges of the FISC. Id. 1803(a)(1). FISC judges
consider ex parte applications submitted by the executive branch for electronic surveillance and
physical searches. See id. The ISCR, which is composed of three United States District or
Circuit Judges designated by the Chief Justice, reviews denials by the FISC of applications for
ISA intelligence collection. Id. 1803(b).

ISA, as amended in 2001 under the USA PATRIOT Act (?Patriot Act?) and as amended
again in 2008 under the FISA Amendments Act consists of eight titles. As relevant
here, Title I (codi?ed at 50 U.S.C. 1801 to 1813) deals with electronic surveillance, Title 
(codi?ed at 50 U.S.C. 18214 829) deals with physical searches, and Section 702 (part of Title

VII and codified at 50 U.S.C. 1881a) deals with the acquisition of foreign intelligence

 

Case: Doc 374 Filed: 09/11/18 5 of 53. PageID 9748

information from electronic communication service providers. Unlike surveillance under Titles I
and Section 702 surveillance targets non-United States persons located abroad. See 50 U.S.C.
1881a(b). I
A. FISA Titles I and 
Titles I and of FISA provide detailed procedures for the authorization and execution of
electronic surveillance and physical searches.
1. Emergency Authorization and Standard FISA Application
The Government typically must apply for and obtain an order from the FISC before
conducting electronic surveillance under Title I or engaging in physical searches under Title 
See UnitedStates v. Huang, 15 F. Supp. 3d 1131, 1136 (D.N.M. 2014). An exception to this
general rule is when the Attorney General authorizes emergency surveillance or an emergency
physical search. An emergency authorization is proper if the Attorney General
(A) reasonably determines that an emergency situation exists with respect to the
employment of electronic surveillance [or a physical search] to obtain foreign
intelligence information before an order authorizing such surveillance [or

physical search] can with due diligence be obtained;

(B) reasonably determines that the factual basis for the issuance of an order . . . to
approve such electronic surveillance [or physical search] exists;

(C) informs, either personally or through a designee, a judge having jurisdiction .
. . at the time of such authorization that the decision has been made to
employ emergency electronic surveillance [or an emergency physical
search]; and

(D) makes an application . . . to a judge having jurisdiction . . . as soon as
practicable, but not later than 7 days after the Attorney General authorizes

such surveillance [or physical search].

50 U.S.C. 1805(e)(1); see id. 1824(e)(1).

 

Case: Doc 374 Filed: 09/11/18 6 of 53. PageID 9749

In all other circumstances, the Government must apply for and obtain an order from the
FISC before engaging in electronic surveillance under Title I or a physical search under Title 
The application to conduct electronic surveillance or a physical search must include

(1) the identity of the [?ederal of?cer making the application;

(2) the identity, if known, or a description of the speci?c target of the electronic
surveillance [or physical search, and, in the case of a physical search, a
description of the information, material, or property to be seized, reproduced,
or altered];

(3) a statement of the facts and circumstances relied upon by the applicant to
justify his belief that??

- (A) the target of the electronic surveillance [or physical search] is a
foreign power or an agent of a foreign power[, and, in the case of a
physical search, the premises or property to be searched contains
foreign intelligence information];

(B) each of the facilities or places at which the electronic surveillance [or
physical search] is directed is . . . or is about to be used, [owned,
possessed by, or in transit to] a foreign power or an agent of a foreign
power; 

(4) a statement of the proposed minimization procedures;

(5) a description of the nature of the information sought and the type of
communications or activities to be subjected to the [electronic] surveillance[,
or, in the case of a physical search, a statement of the nature of the foreign
intelligence sought and the manner in which the physical search is to be
conducted];

(6) A certi?cation [of a high-ranking executive branch 

(A) that the certifying of?cial deems the information sought to be foreign
intelligence information; 

(B) that a signi?cant purpose2 of the surveillance [or physical search] is
to obtain foreign intelligence information;

 

2 As originally enacted, ISA required a high?ranking member of the executive branch to certify that ?the
purpose? of the surveillance was to obtain foreign intelligence information. Aziz, 228 F. Supp. 3d at 367.
The required certi?cation changed when Congress enacted the Patriot Act in 2001. See id. The Patriot Act
amended FISA to require that a high-ranking executive branch of?cial certify that the acquisition of

6

 

 

 

Case: Doc 374 Filed: 09/11/18 7 of 53. PageID 9750

(C) that such information cannot reasonably be obtained by normal
investigative techniques;

(D) that designates the type of foreign intelligence information being
sought . . and

(E) including a statement of the basis for the certi?cation thatw

the information'sought is the type of foreign intelligence
information designated; and

(ii) such information cannot reasonably be obtained by normal
investigative techniques;

(7) a summary statement of the means by which the surveillance will be effected
and a statement whether physical entry is required to effect the [electronic]
surveillance[, and, in the case of a physical search of the residence ofa United
States person; the Attorney General shall state what investigative techniques
have previously been utilized to obtain the foreign intelligence information
concerned and the degree to which these techniques resulted in acquiring such
information];

(8) a statement of the facts concerning all previous applications that have been
made to any judge under this subchapter involving any of the persons,
facilities, or places speci?ed in the application, and the actions taken on each
previous application; and

(9) a statement of the period of time for which the electronic surveillance is
required to be maintained . . . .

50 U.S.C. 1804(a); see I'd. 1823(a) (footnote added). The Attorney General must approve
applications for electronic surveillance or physical search before they are presented to the FISC.
See id. 1804(a), 1823(a).

As used in ISA, ?foreign intelligence information? encompasses ?information that
relates to, and if concerning a United States person is necessary to, the ability of the United
States to protect against? (A) actual or potential attack or other grave hostile acts of a foreign

power or an agent of a foreign power; [or] (B) . . . international terrorism . . . by a foreign power

 

 

foreign intelligence information is ?a signi?cant purpose? of the requested surveillance. See id; 50 U.S.C.
1804(a)(6)(B), 1823(a)(6)(B)-

Case: Doc 374 Filed: 09/11/18 8 of 53. PageID 9751

or an agent ofa foreign power . . . 50 1801(e)(1); see id. 1821(1). The term also
encompasses ?information with respect to a foreign power . . . that relates to, and if concerning a
United States person is necessary the national defense or the security of the United

States; or (B) the conduct of the foreign affairs of the United States.? Id. 1801(e)(2); see id 

 

1821(1).

 

A ?United States person? encompasses United States citizens and aliens lawfully
admitted for permanent residence in the United States. 50 U.S.C. 1801(i); see id. 1821(1).

A ?foreign power? includes any ?group engaged in international terrorism or activities in

 

preparation therefor.? 50 U.S.C. 1801(a)(4); see id. 1821(1). And an ?agent ofa foreign
power? encompasses ?any person other than a United States person, who . . . acts in the United
States . . . as a member of a foreign power . I. . irrespective of whether the person is inside the
United States? or ?engages in international terrorism or activities in preparation therefore.? Id. 
1801(b)( see id. 1821(1). 'An agent of a foreign power also encompasses ?any person who . . 
. knowingly engages in . . . international terrorism, or activities that are in preparation therefore, I
for or on behalf of a foreign power? or ?knowingly aids or abets any person in the conduct of ii.
[the activities just described] or knowingly conspires with any person to engages in [those]
activities.? Id. 1801(b)(2); see id. 1821(1).

Also referenced in the application requirements above (and in other FISA titles),
?minimization procedures? are specific procedures, adopted by the Attorney General, that are,
among other things,

reasonably designed in light of the purpose and technique of the particu1ar

surveillance [or physical search], to minimize the acquisition and retention, and

prohibit the dissemination, of nonpublicly available information concerning

unconsenting United States person consistent with the need of the United States to
obtain, produce, and disseminate foreign intelligence information.

Case: Doc 374 Filed: 09/11/18 9 of 53. PageID 9752

SOIU.S.C. 1801(h)(1); see id. Notably, minimization procedures allow ?for the
retention and dissemination of information that is evidence of a crime which has been, is being,
or is about to be committed and that is to be retained or disseminated for law enforcement
purposes.? Id. 1801(h)(3), 

2. FISC Order

After reviewing the Government?s application, the FISC will issue an ex parte order
authorizing electronic surveillance or physical searches if it ?nds that

the application has been made by a [?ederal of?cer and approved by the
Attorney General;

(2) on the basis of the facts submitted by the applicant there is probable cause to
believe that??~

(A) the target of the electronic surveillance [or physical search] is a
foreign power or an agent of a foreign power: Provided, That no
United States person may be considered a foreign power or an agent
of a foreign power solely upon the basis of activities protected by the
?rst amendment to the Constitution of the United States; and

(B) each of the facilities or places at which the electronic surveillance [or
physical search] is directed is . . . or is about to be used, [owned,
possessed by, or is in transit to] a foreign power or an agent of a
foreign power;

(3) the proposed minimization procedures meet the de?nition of minimization
procedures under and

(4) the application . . . contains all statements and certi?cations required [under 
1804 (with reSpect to electronic surveillance) or 1823 (with respect to a
physical search)] . . . and, if the target is a United States person, the
certi?cation or certi?cations are not clearly erroneous . . . .

50 U.S.C. 1805(a); see id. 1824(a).
A ISC order must specify

(A) the identity, if known, or a description of the speci?c target of the electronic
surveillance [or physical search] . . . 

 

Case: Doc #2 374 Filed: 09/11/18 10 of 53. PagelD 9753 

(B) the nature and location of each of the facilities or places at which the
electronic surveillance will be directed, if lmown[, or, in the case of a
physical search, the nature and location of each of the premises or property to
be searched];

(C) the type of information sought to be acquired and the type of
communications or activities to be subjected to the surveillance[, or, in the
case of a physical search, the type of information, material, or property to be
seized, altered, or reproduced];

(D) the means by which the electronic surveillance will be effected and Whether
physical entry will be used to effect the surveillance[, or in the case of a
physical search, a statement of the manner in which the search is to be
conducted and, whenever more than one physical search is authorized under
the order, the authorized scope of each search and a description of the
minimization procedures applicable to the information acquired by each
search]; and

(E) the period of time during which the electronic surveillance [or physical
searches are] approved. .

50 U.S.C. 1805(c)(l); see id. 1824(c)(1). A FISC order must also direct that the Government
follow the applicable minimization procedures. Id. 1805(c)(2)(A), 1824(c)(2)(A).

Electronic surveillance and physical searches targeting a United States person may be
approved for up to 90 days; surveillance and searches targeting a non-United States person may
be approved for up to 120 days. See 50 U.S.C. 1805(d)(1), 1824(d)(1). An extension to this
time frame may be obtained, but only if the United States submits another application that
complies with requirements. See id. 1805(d)(2), 1824(d)(2). Extensions relating to a
United States person may be approved for up to 90 days; those relating to a non-United States
person may be approved for up to one year. See id.

3. District Court Review

An ?aggrieved person? can move to suppress PISA-obtained or ?derived evidence that the
Government seeks to use against him in a trial, hearing, or other proceeding in or before any

court. See 50 U.S.C. 1806(e), 1825(f)(1). A person is aggrieved under FISA if he is the target

10

 

 

Case: Doc #2 374 Filed: 09/11/18 11 of 53. PagelD 9754

of, or was subject to, electronic surveillance, see id. or if his premises, property,
information, or material is the target of, or was subject to, a physical search, see id 1821(2).
An aggrieved person can move for suppression on the grounds that (1) the information was
unlawfully acquired or (2) the surveillance or physical search was not made in conformity with
the order. See id. 1806(e), 1825(f)(1).

When considering a motion to suppress evidence obtained through FISA collection, a
court must review the Government?s applications, the orders, and any documentation
describing the execution of the collection. See United States v. Aiwan, No. 2012
WL 399154, at *7?8 (W.D. 'Ky. Feb. 7, 2012).

a. Reviewing FISA Applications

A district court?s primary task in reviewing an application for FISA collection is to
ensure that it contains all the statutorily mandated elements. See Alwcm, 2012 WL 399154, at 
When an application ?was properly made and earlier approved by a FISA judge, it carries a
strong presumption of veracity and regularity in a reviewing court.? Id. (quoting United States v.
PeZton, 835 F.2d 1067, 1076 (4th Cir. 1987)). Consequently, district courts subject the
Government?s FISA applications to minimal scrutiny on review. Id.

Like the application itself, the certi?cation appended to a FISA application is also
presumed valid and subjected only to minimal scrutiny. See, e. 3, United States v. Badia, 827
F.2d 1458, 1463 (11th Cir. 1987); UnitedStates v. Duggan, 743 F.2d 59, 77 n.6 (2d Cir.
1984). Neither the ISC nor a reviewing district court should ?second-guess the executive branch
of?cial?s certi?cation.? Duggan, 743 F.2d at 77. The reviewing court?s role is merely to ensure
the certi?cations were properly made. See id; United States v. Ahmed, No. 1:06-cr-147, 2009

US. Dist. LEXIS 120007, at *20 (ND. Ga. Mar. 19, 2009).

11

 

 

 

Case: Doc #2 374 Filed: 09/11/18 12 of 53. PagelD 9755

b. Reviewing FISC Orders

A district court must review FISC orders to ensure they contain the statutorily required
?ndings, speci?cations, and directions. See Alwan, 2012 WL 399154, at *10. I

One of the most critical ?ndings the ISC must make before authorizing electronic
surveillance is that probable cause exists to believe the target of the surveillance or search is a
foreign power or an agent of a foreign power and each of the facilities or places at which the
surveillance or search is targeted is or is about to be owned, used, possessed by, or is in transit to
or from a foreign power or an agent of a foreign power. See 50 U.S.C. 1805(a)(2), 1824(a)(2).
There is some disagreement on the standard district courts should apply when reviewing the
adequacy of the probable cause determination. A minority of courts has held that a
standard deferential to the determination is appropriate. See Aziz, 228 F. Supp. 3d at 374.
This Court, however, agrees with ?[t]he more robust line of authority,? which has concluded that
a de novo standard applies. Id; see, eg. United States v. Hassan, 742 F.3d 104, 138?39 (4th Cir.
2014) (stating that the district court reviewed the probable cause determinations de novo in
accordance with the Fourth Circuit?s precedent); United States v. Etshinawy, No. 16?0009, 2017
WL 1048210, at *9 (D. Md. Mar. 20, 2017) (applying a de novo standard of review); United
States v. Mubayyid, 521 F. Supp. 2d 125, 131 (D. Mass. 2007) (same); United States v. Rosen,
447 F. Supp; 2d 538, 545 (ED. Va. 2006) (same).

Consequently, in conducting my review of the Title I and Title materials, I accord a
presumption of validity to the Government?s applications and supporting certifications, and I
review de novo the probable cause determinations. See Dnggan, 743 F.2d at 77 n6;
Alwan, 2012 WL 399154, at Mnbayyid, 521 F. Supp. 2d at 131', Rosen, 447 F. Supp. 2d at

545.

12

 

 

- Case: Doc #2 374 Filed: 09/11/18 13 of 53. PagelD 9756

 

c. Ex Parte and In Camera Procedure
The Government has ?led an af?davit from the Attorney General in which she stated
under oath that disclosure or an adversary hearing would harm the national security of the United
States. (Doc. No. 190 ii 3.) When the Government ?les such an af?davit, the district court must
review the FISA materials in camera and ex parte. 50 U.S.C. 1806(f). And when the
Government ?les such an affidavit, the court may only order the disclosure of the FISA materials
?where such disclosure is necessary to make an accurate determination of the legality of the

surveillance.? Id. 1806(f). Disclosure may be necessary under FISA

 

where the court?s initial review of the application, order, and fruits of the 
surveillance indicates that the question of legality may be complicated by factors ?22
such as ?indications of possible misrepresentation of fact, vague identi?cation of ii?"
the persons to be surveilled, or surveillance records which include a signi?cant 
amount of nonforeign intelligence information, calling into question compliance
with the minimization standards contained in the order.?

 

United States v. Belfietd, 692 F.2d 141, 147 (DC. Cir. 1982) (quoting-S. Rep. No. 95701, at 64
(1978)). If, in other words, the court concludes that it can determine, without assistance or input
from the aggrieved party, whether the ISA surveillance was lawful, the court may not order
disclosure ofthe FISA materials. See 50 U.S.C. 1806(f); United States v. Amawi, 531 F. Supp.
2d 832, 837 (ND. Ohio 2008).

If the court determines based on its in camera and er; parte review that the ISA
collection was lawfully authorized and conducted in conformity with the orders, the court
must deny the aggrieved party?s motions fer suppression and disclosure ?except to the extent that
due process requires discovery or disclosure.? 50 U.S.C. 1806(g). Courts have interpreted this
to mean that disclosure is limited to that required under Brady v. Marytand, 373 U.S. 83 (1963).

See A2352, 228 F. Supp. 3d at 370; Amawi, 531 F. Supp. 2d at 837.

13

Case: Doc #2 374 Filed: 09/11/18 14 of 53. PagelD 9757

B. Disclosure of the FISA Title I and Title Materials

I have reviewed, in camera and ex parte, the Title I and Title materials submitted by
the Government. And through this review, I conclude that I can determine, on my own, whether
the challenged FISA collection was lawful. I have not observed in the materials any complicating
factors, such as misrepresentations of fact, vague identi?cations of surveillance targets, or
evidence of signi?cant non-foreign intelligence collection. See Bel?eld, 692 F.2d at 147.
Disclosure is, accordingly, not necessary to make an accurate determination of the legality of the
surveillance, see 50 U.S.C. 1806(f), and Defendants? request for the disclosure of the FISA
materials is denied.

Defendants stress that disclosure of FISA material is permitted to the extent that due
process requires it. (Doc. No. 150 at 25?26 (citing 50 U.S.C. The due process
exception does not apply here though. Courts have interpreted the exception narrowly; lit
encompasses only those materials that would be discoverable under Brady. See Aziz, 228 F.
Supp. 3d at 370; Amawi, 5 31 F. Supp. 2d at 837. And here, my review of the FISA materials
reveals no exculpatory information that would need to be disclosed under Brady.

As an additional argument for disclosure, Defendants contend that ex parte proceedings,
like those mandated under ISA, are ?antithetical to the adversary system that is the hallmark of
American criminal justice? and that due process, therefore, requires defense counsel?s
participation in reviewing the FISA materials. (Doc. No. 150 at 26.)

Defendants have legitimate concerns regarding the fairness of ex parte proceedings.
These types of proceedings, however, are not foreign to the American criminal justice system.
See United States v. Daoua?, 755 F.3d 479, 482 (7th Cir. 2014) (?Thejudge appears to have

believed that adversary procedure is always essential to resolve contested issues of fact. That is

14

 

Case: Doc #2 374 Filed: 09/11/18 15 of 53. PagelD 9758

an incomplete description of the American judicial system in general and the federal judicial
system in particular. There are ex parte or in camera hearings in the federal courts as well as

hearings that are neither or both?); United States v. Isa, 923 F.2d 1300, 1307 (8th Cir. 1991)

 

(?Courts often conduct in camera reviews in criminal proceedings when, as here, the defendant?s
right of confrontation is subordinated to competing interests of society?).

Nor are ex parte proceedings inherently unconstitutional or otherwise unlawful, as
Defendants seem to suggest. See Daoad, 755 F.3d at 482?83. Indeed, numerous courts have
found ex parte proceedings permissible. See, e. g. Isa, 923 F.2d at 1306?07 (concluding
that the Sixth Amendment right of confrontation is not violated by ex parte, in camera
review procedures); United States v. BeZ?eZa?, 692 F.2d 141, 147, 149 (DC. Cir. 1982) (?The
language of section 1806(f) clearly anticipates that an ex parte, in camera determination is to be
the rule. Disclosure and an adversary hearing are the exception, occurring only when necessary. .
. . [Moreover,] claim that disclosure and an adversary hearing are constitutionally required
goes directly contrary to all precedent on point. In this circuit and in others, it has
constantly been held that the legality of electronic, foreign intelligence surveillance may, even
should, be determined on an in camera, ex parte basis?); United States v. Thomas, 201 F. Supp.
3d 643, 650 (ED. Pa. 2016) Court can safely reject Defendant?s apparent contention that
ex parte provisions are per se unlawful?); United States v. Nichotson, No. 
2010 WL 1641167, at *3 (D. Or. Apr. 21, 2010) tit?camera review provisions have
been held to be And as most pertinent here, the Sixth Circuit has already
rejected an argument similar to Defendants?, holding that requirement that the district
court conduct an ex parte, in camera review of FISA materials does not deprive a defendant of

due process.? United States v. Damrah, 412 F.3d 618, 624 (6th Cir. 2005) (?There is likewise no

15

Case: Doc #2 374 Filed: 09/11/18 16 of 53. PagelD 9759

merit to Damrah?s argument that Alderman v. United States, [394 US. 165 (1969)], mandates
that surveillance materials [be produced] and an adversarial hearing be conducted before a
district court can determine whether the surveillance was authorized and lawfully conducted. 1n
Alderman, the issue was whether surveillance materials should be produced and an adversarial
hearing conducted where the prosecution planned to use evidence from surveillance that had
already been deemed Adhering to the Sixth Circuit?s conclusion that ex
parte and in camera procedures do not run afoul of constitutional due process requirements, 1
find that Defendants? argument lacks merit.

C. Suppression of FISA-Obtained or ?Derived Evidence

 

Defendants next move for suppression of evidence obtained or derived from surveillance i i
and physical searches conducted under FISA Titles I anle. They advance two argumentsuone I
constitutional and one statutory. Defendants contend that Titles I and violate the Fourth
Amendment. (Doc. No. 150 at And Defendants highlight several issues that might cause
the surveillance and searches to run afoul of statutory requirements. (Id. at 247.)

1. Fourth Amendment Argument

Defendants? constitutional argument focuses on amendment by the Patriot Act in
2001. (See Doc. No. 150 at 31?32.) As amended, FISA allows for surveillance when ?a
signi?cant purpose? of the collection is the acquisition of foreign intelligence information. (Id. at
32 (quoting 50 U.S.C. 1804(a)(6)(B), 1823(a)(6)(B)) (internal quotation marks omitted).)
Prior to the amendment, FISA permitted surveillance only when ?the purpose? of the
surveillance was to obtain foreign intelligence information. A232, 228 F. Supp. 3d at 367. This

change, Defendants argue, allows the Government to bypass the Fourth Amendment when

16

Case: Doc #2 374 Filed: 09/11/18 17 of 53. PagelD 9760

gathering evidence for a criminal prosecution if the Government simply certi?es that a
signi?cant purpose of the FISA collection is the acquisition of foreign intelligence information.

Defendants acknowledge that courts have consistently upheld the constitutionality of the
?signi?cant purpose? standard. (Doc. No. 150 at 33.) They suggest, h0wever, that these decisions
should be revisited because they were issued before ?the widely publicized public disclosures
regarding the expansive nature of Section 702?s PRISM and [u]pstream collections?
patticularly insofar as they involve the collection of domestic communications of American
citizens.? (Id) Because these surveillance programs allegedly ?vacuum-up an untold number of
domestic communications,? courts should no longer ?naively accept[] that the purpose of FISA
surveillance is foreign intelligence.? (Id. at 33-34.)

Controlling precedent decides this issue. in 2005, the Sixth Circuit rejected a Fourth
Amendment challenge to procedures. Dammit, 412 F.3d at 625. The court explained in
. Dammit that the defendant?s Fourth Amendment challenge lacked merit, as has uniformly
been held to be consistent with the Fourth Amendment.? 163.; see also Clapper v. Amnesty Int ?3
USA, 568 US. 398, 421 n.8 (2013) (In Damrah, ?the Sixth Circuit ultimately held that 
procedures are consistent with the Fourth Amendment?). Dammit has not been overturned or
altered in light of the public disclosures regarding PRISM and upstream collections. And
consequently, Damrah forecloscs Defendants? constitutional challenge.3

2. I Statutory Argument

Defendants? second suppression argument challenges the Government?s adherence to

statutory requirements. (See Doc. No. 150 at Defendants request suppression based

 

3 Although Defendants suggest in passing that FISA, as amended by the Patriot Act, may violate other
constitutional provisions the First, Fifth, and Sixth Amendments), Defendants? constitutional
argument focuses exclusively on the Fourth Amendment implications of ?significant purpose?
language. (See Doc. No. 150 at 31?35.)

17

 

 

 

Case: Doc #2 374 Filed: 09/11/18 18 of 53. PagelD 9761

on various potential statutory violations: (1) the FISA applications may have failed to establish
probable cause that Defendants, or whomever was targeted, was a ?foreign power? or ?an agent
of a foreign power?; (2) the applications may contain intentional or reckless material
falsehoods or omissions; (3) the primary purpose of the electronic surveillance or physical

searches may have been to obtain evidence of domestic criminal activity and not foreign

 

intelligence information or, in other words, capturing foreign intelligence information may not
have been a ?signi?cant purpose? of the surveillance or searches; (4) the surveillance or searches i
may have been impermissibly based on activity protected by the First Amendment; (5) the 
Government may have been able to obtain the evidence collected through the surveillance or 
searches through normal investigative techniques; (6) the Government may not have made the I
required certi?cations in the FISA applications, may have failed to obtain any necessary

extension of prior FISA orders, or may have continued the surveillance or searches after any . 
basis for such initial surveillance was no longer valid; (7) the Government may not have I
established or abided by the appropriate minimization procedures; (8) the surveillance or
searches may have been based impermissibly on acquisitions conducted pursuant to FISA
Section 702; and (9) the Government may have Violated other provisions of FISA or the First or
Fourth Amendments, in manners unknown to Defendants. (Id; Doc. No. 156 at 9-~l 7.)

Based on my in camera, ex parte review of the Title I and Title materials, I ?nd
Defendants? concerns unwarranted. The FISA applications contained the statutorily required
elements. The orders contained the necessary elements and properly found the existence
of probable cause. And the surveillance and searches Were conducted in compliance with the
orders. Defendants are, consequently, not entitled to suppression of evidence obtained or

derived from surveillance and physical searches conducted under FISA Titles I and 

18

Case: Doc #2 374 Filed: 09/11/18 19 of 53'. PagelD 9762

D. Franks Hearing

For their last argument relating to Titles I and HI, Defendants move for an evidentiary
hearing under Franks v. Delaware, 438 U.S. 154, l55~56 (1978); Defendants request a Franks
hearing so they can explore the veracity of the information set forth in the Government?s
applications. (Doc. No. 150 at 18?21.)

Under Franks, a criminal defendant may challenge the truthfulness of factual statements
in an af?davit-ofprobable cause through an evidentiary hearing. See Franks, 438 U.S. at 155m56,

l7l~72. When a defendant makes ?a substantial preliminary showing? that the af?davit in

 

question contains a false statement which was (1) knowingly or recklessly made and (2)
necessary to the ?nding of probable cause, the court must conduct an evidentiary hearing to
examine the suf?ciency of the af?davit. Id. at 155. i
The Sixth Circuit has not explicitly held that Franks applies to ISA applications and
orders. See 'Darnrah, 412 F.3d at 624~25. The Sixth Circuit has indicated, however, that if
Franks does apply in the FISA context, the threshold burden under Franks making a
substantial preliminary showing that the affidavit contains a false statement) should also apply.

See id.

I recognize the challenge faced by a defendant in making a substantial preliminary
showing that a FISA application contains a false statement when the defendant does not have
access to the application. But the threshold burden exists nonetheless. See Mabayyz'd, 521 F.
Supp. 2d at 131 (?The balance struck under FISA?which is intended to permit the gathering of
foreign intelligence under conditions of strict secrecy, while providing for judicial review and

other appropriate safeguards?would be substantially undermined if criminal defendants were

Case: Doc #2 374 Filed: 09/11/18 20 of 53. PagelD 9763

granted a right of disclosure simply to ensure against the possibility of a ranks Violation?). And
here, Defendants have failed to satisfy that burden.

Defendants support their request for a Franks hearing with a discussion of a 2002 FISC
decision, In re All Matters Submitted to the Foreign Intelligence Surveillance Court, 218 F.
Supp. 2d 611, 620?21 (FISC 2002), in which the ISC reported that September 2000, the
government came forward to confess error in some 75 FISA applications related to major
terrorist attacks directed against the United States?; these errors ?related to misstatements and
omissions of material facts.? Id. at 620. Defendants argue that these issues were not isolated or
resolved?as revealed by a March 2006 Department of Justice Inspector General report, which
found that the FBI had frequently violated its own wiretapping and other intelligence-gathering
procedures in the two years preceding the report. (Doc. No. 150 at 20?21 (citing U.S. Dep?t of
Justice, Of?ce of the Inspector Gen, A Review ofthe FBI ?5 Handling oflntelligence Related to
the September 1 Attacks (November 2004) 24?25, 29 

Defendants? argument falls ?at. The Government?s errors from more than a decade ago
do not amount to a substantial preliminary showing that an application for FISA collection
relevant to this case contains a false statement which was knowingly or recklessly made and
necessary to the ?nding of probable cause. I also note that in my review of the FISA applications
relevant to this case, I have not observed any false statements, let alone false statements made
knowingly or recklessly that would be necessary to the finding of probable cause. Defendants?
request for a Franks hearing is denied.

1 next consider the motions for disclosure and suppression under FISA Section 702 (Doc.
Nos. 140, 146).



20

 

Case: Doc #2 374 Filed: 09/11/18 21 of 53. PagelD 9764

A. FISA Section 702 i

As originally enacted, FISA de?ned ?electronic surveillance? to cover four types of

 

domestically?focused foreign intelligence collection activities. See 50 U.S.C. 1801(f); United
States v. Hasbajmmi, No. 2016 WL 1029500, at *4 (E.D.N.Y. Mar. 8, 2016).

Because the de?nition did not apply to surveillance conducted outside the United States,

 

Congress decided to modernize FISA by enacting, in 2007, the Protect America Act 
Hasbajrami, 2016 WL 1029500, at Under the PAA, the Director of National Intelligence
and the Attorney General could authorize the acquisition of foreign intelligence
information concerning persons reasonably believed to be outside the United States. Id. To
authorize an acquisition, the DN1 and the Attorney General had to certify that there were
reasonable targeting procedures in place to ensure that the surveillance targeted persons
reasonably believed to be outside the United States, (ii) that the minimization procedures in place

satisfied requirements, and and that a significant purpose of the acquisitionlwas to

 

obtain foreign intelligence information. Id The FAA, however, expired in February 2008 due to
a sunset provision. Id. at In response, Congress enacted the FISA Amendments Act in July
2008. Id.

Section 702 of the FAA, codi?ed at 50 U.S.C. 1881a, ?supplements pre-existing FISA
authority by; creating a new framework under which the Government may seek the 
authorization of certain foreign intelligence targeting the communications of non-US. persons
located abroad.? Clapper, 568 U.S. at 404. Section 702, unlike Titles I and 111, allows for
foreign intelligence acquisition without a requirement that the Government ?rst demonstrate
probable cause that the target of the collection is a foreign power or agent of a foreign power. Id.

Also unlike the surveillance and searches conducted under Titles I and 111, under Section 702, the

21

Case: Doc #2 374 Filed: 09/11/18 22 of 53. PagelD 9765

 

Government can engage in. foreign intelligence collection without first specifying the nature and

location of each of the facilities or places at which the acquisition will occur. Id.

 

Congress reauthorized Section 702 acquisitions in January 2018 with the passage of the
FISA Amendments Reauthorization Act of 2017.

1. Authorization

The Attorney General and the DN1 may, upon the issuance of an order from the FISC,
jointly authorize the ?targeting of persons reasonably believed to be located outside the United

States? for a period of up to one year to acquire foreign intelligence information. 50 U.S.C. 

 

An authorization for Section 702 acquisition is subject to several limitations. The
authorization

(1) may not intentionally target any person known at the time of acquisition to be
located in the United States;

(2) may not intentionally target a person reasonably believed to be located outside
the United States if the purpose of such acquisition is to target a particular,
known person reasonably believed to be in the United States;

(3) may not intentionally target a United States person reasonably believed to be
located outside the United States;

(4) may not intentionally acquire any communication as to which the sender and
all intended recipients are known at the time of the acquisition to be located in
the United States; [and] 

(5) may not intentionally acquire communications that contain a reference to, but
are not to or from, a target of an acquisition authorized under subsection 
except as provided under section 103(b) of the FISA Amendments
Reauthorization Act of 2017; and

(6) shall be conducted in a manner consistent with the [Fourth Amendment].

Id. 1881a(b).

2. Submission to the FISC

 

4 ?Foreign intelligence information? has the same de?nition in 1881a that it has in 1801(e). See 50
U.S.C. 1881(a).

22

Case: Doc #2 374 Filed: 09/11/18 23 of 53. PagelD 9766

Before the Government can acquire foreign intelligence information under Section 702,
the Government must, with limited exceptions, obtain the approval of (1) the
Government?s certi?cation regarding the proposed collection, (2) the applicable targeting
procedures, and (3) the applicable minimization procedures. See 50 U.S.C. 1881a(a), 
- Ci)-

In the GOvernment?s certi?cation, the Attorney General and the DNI must attest that
(1) There are targeting procedures in place, which have been or Will-b6 submitted for. approval

by the FISC, that are reasonably designed to ensure that the acquisition is limited to targeting
person reasonably believed to be located outside the United States and to prevent the
intentional acquisition of purely domestic communications;

(2) The minimization procedures meet the de?nition of minimization procedures set forth in
PISA Titles I and (50 U.S.C. 1801(h), 1821(4)) and have been or will be submitted for
approval by the FIS 

(3) Guidelines have been adopted by the Attorney General to ensure compliance with the
limitations set forth in 1881a(b) and to ensure that an application for a FISC order is ?led;

(4) The-targeting and minimization procedures and guidelines are consistent with the Fourth
Amendment;

(5) A signi?cant purpose of the acquisition is to obtain foreign intelligence information;

(6) The acquisition involves Iobtaining foreign intelligence information from or with the
assistance of an electronic communication service provider; and

(7) The acquisition complies Iwith the limitations set forth in 1881a(b). 50 U.S.C. 

1 881a(h)(2)(A).

23

 

 

 

Case: Doc #2 374 Filed: 09/11/18 24 of 53. PagelD 9767

The Government?s certi?cation must include copies of the targeting and minimization
procedures. Id. 1881a(h)(2)(B). The certi?cation must ?be supported, as appropriate, by the
af?davit of any appropriate of?cial in the area of national security? who is either ?appointed by
the President, by and with the advice and consent of the Senate? or ?the head'of an element of
the intelligence community.? Id. 1881a(h)(2)(C). And the certi?cation must include either ?an
effective date for the authorization that is at least 30 days after the submission of the written
certi?cation to the or, if the acquisition has already begun or the effective date is less
than 30 days after the certi?cation?s submission, ?the date the acquisition began or the effective
date for theacquisition.? Id. 1881a(h)(2)(D).

The Government?s targeting procedures must be reasonably designed to ensure that
any authorized acquisition ?is limited to targeting persons reasonably believed to be located
outside the United States? and ?prevent the intentional acquisition of any communication as
to which the sender and all intended recipients are known at the time of the acquisition to be
located in the United States.? 50 U.S.C. 1881a(d)(1). And the Government?s minimization
procedures must comport with the de?nition of the term as found in FISA Titles I and (50
U.S.C. 1801(h), 1821(4)). Id. 1881a(e)(1).

3. FISC Order

The FISC must review (1) the Government?s certification, (2) the applicable targeting
procedures, and (3) the applicable minimization procedures, along with any amendments to the
certi?cation and procedures. 50 U.S.C. The FISC reviews the certi?cation to
ensure that it contains all the required elements. Id. 1881a(j)(2)(A). And the FISC reviews the

targeting and minimization procedures to assess whether they comport with the requirements

 

5 Under the ISA Amendments Reauthorization Act of 2017, the ISC must also review the querying
procedures adopted by the Attorney General and the DNI. See 50 U.S.C. 1881a(t)(l), This
newly added requirement is not implicated in the present case.

24

 

 

 

Case: Doc #2 374 Filed: 09/11/18 25 of 53. PagelD 9768

described above. Id. 1881a(i)(2)(B), (C). The FISC must conduct this review not later than 30
days after receiving the Government?s submission. Id. 

In contrast to FISC approval of surveillance and searches conducted under FISA Titles I
and ISC approval of Section 702 acquisitions does not entail an individualized court order
for each person to be targeted. Hasbajramz?, 2016 WL 1029500, at Rather, the FISC approves
annual submissions by the Attorney General and the DN1, thereby authorizing the acquisition of
foreign intelligence information through the targeting of non?US. persons reasonably believed to
be located outside the United States. See 50 U.S.C. 1881a(a), Hasbajrami, 2016 WL
1029500, at 

If the FISC ?nds that the Government?s certi?cation contains the required elements and
that the targeting procedures and minimization procedures comply with the statutory
requirements and with the Fourth Amendment, the ISC ?shall enter an order approving the
certi?cation and the use, or continued use [in limited circumstances], of the procedures for the
acquisition,? 50 U.S.C. 1881a(j)(3)(A). If, however, the FISC ?nds de?ciencies in the
certi?cation, targeting procedures, or minimization procedures, the FISC must issue an order
directing the Government tom?at the Government?s election and to the extent required by the
order?(ii correct, Within 30 days, any de?ciency identified by the order or (ii) cease, or not
begin, the implementation of the authorization. Id. 1881a(j)(3)(B).

4. Section 702 Acquisition

There are two types of Section 702 collection: PRISM and upstream. Hasbajrami, 2016
WL 1029500, at When utilizing PRISM collection, the Government identi?es the user I
accounts it wants to monitor and sends a ?selector??a speci?c communications facility, such as

a target?s email address or telephone number~?to the relevant communications service provider.

25-

 

 

 

Case: Doc #2 374 Filed: 09/11/18 26 of 53. PagelD 9769

Id. The Government then compels the service provider, through a directive, to provide it with
communications sent to or from the selector. Id. This process is known as ?tasking? the selector.
See id. PRISM collection, which interCepts ?to/from? communications, can result in the
interception of communications with US. persons if the target communicates with such a person.
Id.

The Government has represented this case does not involve upstream collection. (Doc.
No. 191 at 19.) For background though, upstream collection involves the acquisition of
communications through the compelled assistance of the providers that control the
telecommunications backbone within the United States. Hasbajmmi, 2016 WL 1029500, at 
As with PRISM collection, upstream collection intercepts ?to/from? communications. Id
Upstream, however, also allows for the interception of ?about? communications, which are
communications that refer to, or are ?about,? a particular selector. Id. If a targeted email address
were to appear in the body of an email, that email would, for example, constitute an ?about?
communication. Id. Due to its interception of ?about? communications, upstream collection can
result in the acquisition of wholly domestic communications of non-targeted persons. See id.

5. Oversight

Section 702 requires that, at least every six months, the Attorney General and the DN1
periodically assess the Government?s compliance with the targeting procedures, minimization
procedures, and relevant compliance guidelines. 50 U.S.C. 1881a(m)(1). The Attorney General
and the DN1 must submit those assessments to the FISC and to congressional oversight
committees. Id.

The Inspector General of the Department of Justice and the Inspector General of each

element of the intelligence community authorized to acquire information through Section 702

26

Case: Doc #2 374 Filed: 09/11/18 27 of 53. PagelD 9770

must, among other things, review the number of Section 702 targets that were later determined to
I be located in the United States. 50 U.S.C. 1881a(m)(2). The head of each element of the
intelligence community conducting Section 702 acquisitions must, annually, conduct a similar
review. Id. 1881a(m)(3).

Additionally, the Attorney General must, at least every six months, ?fully inform? the
relevant congressional oversight committees about the implementation of Section 702. 50 U.S.C.
1881f(a).

6. District Court Review

Information acquired through Section 702 surveillance is ?deemed to be information
acquired from an electronic surveillance pursuant to Title for purposes of an aggrieved
person?s motion to suppress. 50 U.S.C. 1881e(a)(l). So, under Section 702, an aggrieved
person can move to suppress PISA?obtained or -derived evidence that the Government seeks to
use against him in a trial, hearing, or other proceeding in or before any court. See id. 1806(e).
An aggrieved person can move for suppression on the grounds that the information was
unlawfully acquired or (2) the surveillance was not made in conformity with the lSC?s order.
See id.

And when the Government ?les an af?davit from the Attorney General?as the
Government has done herewin which the Attorney General states under oath that disclosure or
an adversary. hearing would harm the national security of the United States, the district court
must review the FISA materials in camera and ex parte. 50 U.S.C. 1806(f). When an af?davit
from the Attorney General has been ?led, the court may only order the disclosure of the ISA
materials ?where such disclosure is necessary to make an accurate determination of the legality

of the surveillance.? Id.

27

 

Case: Doc #2 374 Filed: 09/11/18 28 of 53. PagelD 9771

B. Disclosure of Section 702 Materials

Defendants have moved for the disclosure of documents and materials concerning the
Government?s acquisitions under Section 702. (Doc. No. 140 at 1.) In support of this request,
Defendants note that on August 11, 2016, the Office of the Director of National Intelligence
released the 2015 Section 702 minimization procedures for the NSA, CIA, FBI, and National
Counterterrorism Center (Id at 2.) Defendants then point to a November 6, 2015
FISC opinion in which that court identifies numerous incidents where the intelligence agencies
failed to comply with the approved minimization procedures. (Id. at Further, Defendants
state that prosecutors in other national security cases have disclosed information about the I
PRISM and upstream collection programs. (Id. at 3.)

Defendants? arguments demonstrate that the Government has, on several occasions,
voluntarily released to the public declassi?ed information on FISA Section 702 surveillance. 
Here, however, aside from its representation that this case does not involve upstream collection,
the Government has not offered to voluntarily release information. (See Doc. No. 191 at 19, 95.)
Nor has the Government indicated the information sought by Defendants is, or will be,
declassi?ed. (See id. at 95.) Instead, the Government has submitted an af?davit in which the
Attorney General stated under oath that disclosure or an adversary hearing on this matter would
harm the national security of the United States. (See id. at 28.) Consequently, I may only order
the disclosure of the FISA materials if the disclosure is necessary to make an accurate
determination of the legality of the acquisition. 50 U.S.C. 1806(f), 1881e(a).

I have reviewed, ex parte and in camera, the FISA Section 702 materials submitted by the
Government. And through this review, I conclude that I can determine, on its own, whether the

challenged Section 702 acquisition was lawful. Consequently, disclosure is not necessary to

28

 

 

Case: Doc #2 374 Filed: 09/11/18 29 of 53. PagelD 9772

make an accurate determination of the legality of the acquisition, see 50 U.S.C. 1806(f),
1881e(a), and Defendants? request for the disclosure of the Section 702 materials is denied.

Disclosure of Section 702 material is also permitted ?to the extent that due process
requires? it. 50 U.S.C. 1806(g); see id. 1881e(a). The due process exception, however, does
not apply here. As noted earlier, the exception encompasses only those materials that would be
discoverable under Brady. See Aziz, 228 F. Supp. 3d at 370; Amawz', 5 31 F. Supp. 2d at 837. And
here, my review of the Section 702 materials reveals no exculpatory information that would need
to be disclosed under Brady.

C. Suppression of Section 702-0btained 0r -Derived Evidence

 

Defendants also move to suppress the evidence obtained or derived from FISA Section

702 acquisitions. (Doc. No. 146 at 1.) They argue that this evidence should be suppressed

 

because (1) Section 702 violates the Fourth Amendment and (2) the acquisitions here may have

violated Section 702?s statutory procedures. (See Doc. No. 147 at l9~23, 36?37.)
1. Fourth Amendment Argument 
Defendants contend that Section 702 acquisitions are unconstitutional because they are I

subject to, but fail to satisfy, the Fourth Amendment?s warrant requirement. (See Doc. No. 147 at

19?23 .) The warrant requirement, Defendants argue, ?presupposes a number of measures that are

conspicuously missing from the search and seizure of electronic communications under Section

702?: (1) a warrant authorizing the search and seizure; (2) based upon probable cause; (3)

describing the place to be searched and the items to be seized with particularity; (4) based on an

affidavit under oath or affirmation; (5) issued by a neutral and detached magistrate operating in a

judicial capacity; and (6) procedures assuring compliance with the terms of the warrant in its

execution. (Id. at 23.)

29

Case: Doc #2 374 Filed: 09/11/18 30 of 53. PagelD 9773

Defendants appear to challenge the constitutionality of Section 702 on its face. (See Doc.
No. 146 at Doc. No. 147 at 19-36.) To succeed on a facial challenge, Defendants would

need to establish that no set of circumstances exists under which Section 702 would be valid. See

 

United States v. Salerno, 481 U.S. 739, 745 (1987). But in the exercise of judicial restraint, and
given that the Government ?implemented [the statute] in a defined context? in this case, I will
limit Defendants? challenge-to an as-applied challenge. Hasbajrami, 2016 WL 1029500, at *7
(quoting In re Directives, 551 F.3d 1004, 1010 (FISCR 2008)); see Warshak v. United States,
532 F.3d 521, 529 (6th Cir. 2008) (?Exercising judicial restraint in a facial challenge frees the

Court not only from unnecessary pronouncements on constitutional issues, but also from

 

premature interpretations of statutes in areas where their constitutional application might be
cloudy.? (quoting United States v. Raines, 362 U.S. 17, 22 

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no warrants

shall issue, but upon probable cause, supported by oath or af?rmation, and

particularly describing the place to be searched, and the persons or things to be

seized.
U.S. Const. amend. IV. The Supreme Court, however, has not interpreted the Fourth Amendment
to require a warrant, a probable cause determination, or, in fact, any measure of individualized
suspicion in every circumstance, for a search to be lawful. See Nat 7 Treasury Emp. Union v. Von
Raab, 489 U.S. 656, 665 (1989); United States v. Muhtorov, 187 F. Supp. 3d 1240, 1253 (D.
Colo. 2015); United States v. Mohamud, No. 2014 WL 2866749, at *12 (D. Or.
June 24, 2014). And, as critical here, when the Government?s actions are ?directed against aliens

in foreign territory,? the Fourth Amendment?s protections do not apply. United States v.

Verdugo-Urquidez, 494 U.S. 259, 267 (1990).

30

Case: Doc #2 374 Filed: 09/11/18 31 of 53. PagelD 9774

In Verdugo-Urquidez, the Supreme Court considered the scope of the Fourth
Amendment?s protections for non-citizens with no substantial voluntary connection to the United
States. See 494 US. at 261, 264?75. The Court began its analysis in by looking to the text of the
Constitution. Id at 264?66. This textual exegesis, the Court noted, suggests that ?the people?
who enjoy the Fourth Amendment?s protections constitute the ?class of persons who are a part of
a national community or who have otherwise developed sufficient connection with this country
to be considered part of that community.? Id. at 265, 27445; see US. Const. amend. IV (?The
right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated . . . (emphasis added)). Guided by this
understanding of the amendment?s scope, the Supreme Court concluded that the Fourth
Amendment?s protections did not apply to the respondent because, the time of the search,
he was a citizen and resident of Mexico with no voluntary attachment to the United States, and
the place searched was located in Mexico.? Verdug0~ Urquidez, 494 US. at 274??75.

I The Supreme Court supported its holding through an analysis of the drafting history and
contemporary views of the Fourth Amendment as well as relevant case law and practical
considerations. Verdugo-Urquidez, 494 US. at 26544. The drafting history of the Fourth
Amendment suggested that its purpose was ?to restrict searches and seizures which might be
conducted by the United States in domestic matters.? Id. at 266. And contemporaries of the
framers seemed to View the amendment as having no application to the nation?s activities
?directed against aliens in foreign territory.? Id. at 267. In earlier cases, the Supreme Court had
found that non?citizens enjoyed certain constitutional rights. Id. at 270471. But those cases
involved non-citizens who had ?come within the territory of the United States and developed

substantial connections with [the] country.? Id. at 271; see also Johnson v. Eisentrager, 339 US.

31

 

Case: Doc #2 374 Filed: 09/11/18 32 of 53. PagelD 9775

763, 770 (1950) (stating that a non-citizen is ?accorded a generous and ascending scale of rights
as he increases his identity with our society?). The reSpondent, by contrast, ?had no previous

signi?cant voluntary connection with the United States.? Urqm'dez, 494 US. at 271.

 

Practical concerns also favored a narrow scope for the Fourth Amendment?s protections. As the
Supreme Court noted, ?[t]he United States frequently employs Armed Forces outside this
country . . . for the protection of American citizens or national security. Application of the Fourth
Amendment to those circumstances could signi?cantly disrupt the ability of the political

branches to respond to foreign situations involving our national interest.? Id. at 273~74 (citation

 

omitted). Of?cials in the executive and legislative branches ?are sworn to uphold the
Constitution, and they presumably desire to follow its commands. But global View of [the
Fourth Amendment?s] applicability would plunge them into a sea of uncertainty as to what might
be reasonable in the way of searches and seizures conducted abroad.? Id. at 274.
a. Warrant Requirement

Section 702 surveillance targets non-US. persons located outside of the United States.
See 50 U.S.C. 1881a(b). But, of course, this does not mean that under Section 702 the
Government acquires only foreign communications. If a US. person communicates with a
targeted individual, the US. person?s communication will be incidentally acquired. (See Doc.
No. 191 at 18?20, 30.)

The Fourth Amendment?s Protections Do Not Apply to Farooq

Assuming that Farooq was a target of the Section 702 acquisitions, (footnote added)

 

The identity of the target(s) of the acquisitions is classified. For the purpose of addressing
Defendants? argument, this discussion assumes that Farooq was a 702 target.

32

Case: Doc #2 374 Filed: 09/11/18 33 of 53. PagelD 9776

Defendants contend that under Verdugo? Urqm'dez the Fourth Amendment?s protections apply to
Farooq because he has substantial connections to the United States and (ii) the acquisitions at
issue purportedly occurred on United States soil. If Farooq has substantial connections to the
United States, the Fourth Amendment?s warrant requirement might apply to the acquisitions at
issue and, in turn, the incidental collection of the communication(s) at issue.

The facts regarding Farooq?s citizenship and connections to the United States are not in
dispute. Farooq is a citizen of India. (See Doc. No. 147 at 1.) He was born, however, in the
United Arab Emirates where he lived from his birth (in 1978) until 1991. 
Farooq came to the United States in August 1999 to attend Louisiana State University 
Farooq studied at LSU through May 2001, when he received a master?s degree in electrical
engineering. (Id) He then enrolled in an engineering program-at Ohio State University
(Id) Farooq remained a student at OSU until August 2004, when he returned to the
U.A.E. after his father?s death. (Id. ).Farooq subsequently visited the United States twice
(excluding his current presence in the country). He was in the United States on a non-
immigrant visitor visa from October 26 to November 19, 2007, and from March 18 to April 2,
2008. (Doc. No. 191 at 76.) Farooq made the March 2008 trip to marry his wife, a United States
citizen, in Orlando, Florida. (162.; Doc. No. 147 at 8.) Despite his marriage, though, Farooq did
not remain in the country. (Doc. No. 191 at 76.) I

These facts do not evince a voluntary connection to the United States suf?cient to bestow
on Farooq the Fourth Amendment?s protections. Farooq studied in the United States for roughly
?ve years. But arooq ?nished his studies in the United States years before the acquisitions at
issue occurred. And after finishing his studies and leaving the United States in 2004, Farooq

returned to visit the country only twice in the subsequent years?for around 25 days in 2007 and

33

 

Case: Doc #2 374 Filed: 09/11/18 34 of 53. PagelD 9777

for around 16 days in 2008. Although Farooq may have established a suf?cient voluntary
connection to the United States to avail himself of the Fourth Amendment?s protections during
his time as a student, Farooq?s connection to the United States has weakened over the years. Cf
Ibrahim v. Dep ?t ofHomeZand Sea, 669 F.3d 983, 997 (9th Cir. 2012) (concluding that the
plaintiff had established a Signi?cant voluntary connection to the United States during her four
years at Stanford despite a trip. abroad during that time because ?[t]he purpose of her trip was to
further, not to sever, her connection to the United States? and because she ?intended her stay
abroad to be brief A non-citizen?s voluntary connection to the United States is not a lifetime
status that, once conferred, lasts inde?nitely irrespective of the non-citizen?sintervening life
choices. Cf Shaughnessy v. United States ex rel. Mezei, 345 US. 206, 208, 213m15 (1953)
(concluding that a 19-month overseas absence of a lawful permanent resident who had
previously lived in the United States for 25 years constituted a ?clear break in [his] continuous
residence here,? such that he had no Fifth Amendment right to challenge his denial of re?entry).
A voluntary connection is just thatwvoluntary. Just as a non-citizen can choose to establish a
connection with the United States, he can also choose to sever or attenuate that connection. Cf
id; Ibrahim, 669 .3d at 997. By living abroad since his departure from OSU in 2004, and then
making only two brief trips to the country in the intervening years, arooq attenuated the
connection to the United States that he may have formed while studying here.

That xFarooq?s wife is a United States citizen does little to alter theFourth Amendment
analysis. The nationality of Farooq?s wife does not automatically amount to a substantial
voluntary connection between Farooq and the United States. Farooq?s marriage is to an
individual, not a nation. Notably, Farooq lived outside the United States despite his marriage to a

United States citizen. arooq came to the United States for the wedding and then left

34

 

 

Case: Doc #2 374 Filed: 09/11/18 35 of 53. PagelD 9778

the country. He remained abroad until he was extradited to the United States to stand trial in this
case.

Farooq?s second argument for the application of the Fourth Amendment?the location of
the Section 702 acquisitions?also falls ?at. Farooq argues, based on his knowledge of the
logistics of Section 702 collection, that the acquisitions took place in the United States. (Doc.
No. 147 at 18 n.2l .) According to Farooq, U.S.-based electronic communications companies
are compelled through ISC directives to produce communications to the Government. (Id. at
18.) The NSA collects and stores the information in databases located in the United States, and

the intelligence agencies, including the NSA, FBI, and CIA, can then query search) through

 

the information. 

The Government does not dispute Farooq?s assertion that Section 702 acquisition takes
place within the United States. (Doc. No. 191 at 37.) The Government argues, instead, that the
location of the acquisition is not constitutionally signi?cant in this case. (Id)

The supreme Court?s opinion in Verdugo- Urquidez focused primarily on whether the
respondent had formed a substantial voluntary connection with the United States. See 494 US. at
265?75 . But the Government?s argument?that the location of the search is not constitutionally
signi?cant?goes too far. In Verdugm Urquz'dez, the Court listed the factual circumstances that
guided its holding. After noting the respondent was a citizen and resident of Mexico with no
voluntary attachment to the United States, the Court noted the place searched was in Mexico. 1d.
at 274~75. Clearly the location of the search has some constitutional signi?cance under Verdugo-
Urqufdez. The question, however, is how much signi?cance the location of the search should

carry.

35

Case: Doc #2 374 Filed: 09/11/18 36 of 53. PagelD 9779

 

Acquisitions under Section 702 are electronic. This is not a situation, for example, where

 

a non-citizen owns a house in the United States and the Government, claiming the Fourth

Amendment does not apply to the non-citizen because he lacks a substantial voluntary

 

connection to the United States, searches the house without first obtaining a warrant and collects

incriminating evidence about a U.S. person. I would likely arrive at a different conclusion in that

 

situation. When a search is electronic, the location of the search carries less weight. The more

 

important geographic consideration is the location of the target of the acquisition. See United

States v. Mohamud, 843 F.3d 420, 439 (9th Cir. 2016) one court put it, ?what matters here

 

is the location of the target,? and notwhere the government literally obtained the electronic
data.? (quoting Hasbajmmi, 2016 WL 1029500, at *9 n. 

A focus on the location of the target better comports with the Supreme Court?s statements
in Verdugo?Urqufdez indicating the Fourth Amendment was not intended to apply to
Government actions directed against ?aliens in foreign territory.? 494 at 267. A focus on the 
location of the target also addresses the Supreme Court?s concern that interpreting the Fourth
Amendment to protect non-citizens with no substantial voluntary connection with the United
States ?could signi?cantly disrupt the ability of the political branches to respond to foreign
situations involving our national interest.? Id. at 273?74. Applying Fourth Amendment
protections to all electronic acquisitions occurring in the United States would allow numerous
aliens in foreign territory, including many suspected terrorists, to claim the protections of the
Fourth Amendment. (See Gov?t Resp. to ISA Section 702 Mot. at 38.)

Focusing on the target?s location also conforms to broader Fourth Amendment
jurisprudence regarding the reasonable expectation of privacy test and the Supreme Court?s

repeated admonition that ?the Fourth Amendment proteCts people, not places.? Katz v. United

36

Case: Doc #2 374 Filed: 09/11/18 37 of 53. PagelD 9780

States, 389 US 347, 511 (1967); see, Minnesota 12. Carter, 525 US. 83, 88 (1998)
(explaining that the Fourth Amendment ?is a personal right that must be invoked by an

individua but that ?the extent to which the Fourth Amendment protects people may depend

 

upon where those people are?); Minnesota v. Olson, 495 U.S. 91, 96 n.5 (1990) (stating that the
Fourth Amendment protects people, not places and ?provides sanctuary for citizens wherever
they have a legitimate expectation of privacy?); Smith v. Maryland, 442 US. 735, 740 (1979)
(?Consistently with Katz, this Court uniformly has held that the application of the Fourth

Amendment depends on whether the person invoking its protection can claim a ?justifiable,? a

 

?reasonable, or a ?legitimate expectation of privacy? that has been invaded by government
action?). The reasonableness of a non~citizen?s expectation of privacy regarding his electronic
communications typically depends on the location where he makes the communications, not on
the location where the United States acquires the communications. Cf Carter, 525 US. at 88
(?We have held that ?capacity to claim the protection of the Fourth Amendment depends . . .
upon whether the person who claims the protection of the Amendment has a legitimate
expectation of privacy in the invaded place.?? (quoting Rakas v. Illinois, 439 US. 128, 143
United States v. Yonn, 702 F.2d 1341, 1347 (11th Cir. 1983) (?The location ofthe
electronic equipment does not alter the irre?itable fact that [the defendant] had no justi?able
expectation of privacy in his conversation . . . 

In sum, assuming Farooq was a Section 702 target, he lacked a substantial voluntary
connection to the United States at the time of the Section 702 acquisitions suf?cient to confer
upon him Fourth Amendment protections. That the acquisitions took place in the United States

does not alter this conclusion.

37

Case: Doc #2 374 Filed: 09/11/18 38 of 53. PagelD 9781

i. No Warrant Required
The question, then, is whether the Government needed to obtain a warrant before it
incidentally acquired U.S. persons? communications under Section 702 while targeting non?US.
persons located outside of the United States. Consistent with other courts that have answered this
question, and consistent with the Supreme Court?s holding in Verdugo- Urqut?dez, I conclude that
no warrant was required for the acquisitions in this case. See Verdugo?Urqut?dez, 494 US. at 267,
274?74; Mohamud, 843 F.3d at 439; Hasbajrami, 2016 WL 1029500, at Mohamud, 2014
WL 2866749, at *14?15. And because no warrant is required, the lack of warrant-related features
in Section 702 the need for a neutral and detached magistrate to make a probable cause
?nding and describe the scope of the search with particularity) does not render the statute
unconstitutional.

Courts ?have long dealt with the issue of incidental interception of non?targeted persons?
communications.? Hasbajrami, 2016 WL 1029500, at see, United States v. Kahn, 415
US. 143, 157??5 8 (1974) (holding that the interception of a wife?s conversations on her home
telephone was incidental, and not in violation of the Fourth Amendment, because her criminal
activities were not foreseen when the Title wiretap order targeting her husband was obtained);
United States v. Butenko, 494 F.2d 593, 608 (3d Cir. 1974) (?nding warrantless surveillance for
foreign intelligence purposes constitutional even though the conversations of United States?
citizens would be overheard). As one example, electronic surveillance conducted under ISA
Title I incidentally collects the communications of US. persons. (See Doc. No. 191 at 3546.)
And traditional FISA surveillance, in fact, ?is likely to capture a signi?cantly larger

concentration of non-targeted U.S. persons? communications than Section 702? because

38

Case: Doc #2 374 Filed: 09/11/18 39 of 53. PagelD 9782

traditional FISA surveillance does not target only foreign communications. (See id. at 36.)
Despite this incidental collection, the Sixth Circuit, as well as numerous other courts, have
rejected Fourth Amendment challenges to FISA Title I surveillance. See Damrah, 412 F.3d at

625. As the ISCR explained in In re Directives, is settled beyond peradventure that

 

incidental collections occurring as a result of constitutionally permissible acquisitions do not
render those acquisitions unlawful.? 551 F.3d at 1015; see also Mohamud, 843 F.3d at 440 (?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 111 or traditional ISA context?); Hasbajramz', 2016 WL 1029500, at *8?9

 

surveillance is lawful in the ?rst place?~where it is the domestic surveillance of US.
persons pursuant to a warrant, or the warrantless surveillance of non-US. persons who are
abroad~?the incidental interception of non-targeted U.S. persons? communications with the
targeted persons is also lawful.? (footnote omitted)). And here, the incidental collection of I
Defendants? communications did not render unlawful the constitutionally permissible
acquisitions targeting non?US. persons located outside the United States.
b. Reasonableness

My conclusion that no warrant was required to conduct the Section 702 acquisitions here
does not necessarily mean that the Fourth Amendment offers Defendants no protection. Courts
considering the constitutionality of Section 702 have assumed the Fourth Amendment offers
some protections to the US. persons and persons in the United States whose communications
have been incidentally collected. See Mohamed, 843 F.3d at 441 n.26.

?Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny;

for it must be reasonable in its scope and manner of execution.? Maryland v. King, 569 US. 435,

39

Case: Doc #2 374 Filed: 09/11/18 40 of 53. PagelD 9783

448 (2013). Finding that no warrant is required to conduct a search ?is merely to acknowledge
that ?rather than employing a per se rule of unreasonableness, [the court must] balance?? the
interests at stake to determine if the search was reasonable. Id. (IZZinois v. 5 31 US.
326, 331 (2001)). In balancing the interests, the court examines the totality of the circumstances
and weighs, ?I?on the one hand, the degree to which [the search] intrudes upon an individual?s
privacy and, on the other, the degree to which it is needed for the promotion of legitimate
governmental interests.? Samson v. California, 547 US. 843, 848 (2006).

'As the Supreme Court has explained on various occasions, the Government?s interest in
protecting the nation from terrorism and foreign threats is an urgent and compelling interest of
the highest order. See, eg. Heider v. Humanitarian Law Project, 561 US. 1, 28 (2010) 
Government?s interest in combating terrorism is an urgent objective of the highest order?); Haig
v. Ages, 453 US. 280, 307 (1981) (?It is ?obvious and unarguable? that no governmental interest
is more compelling than the security of the Nation.? (citation omitted)); see also In re Directives,
551 F.3d at 1012 (?Here, the relevant governmental interest in national securitywis
of the highest order of magnitude?). And acquiring foreign intelligence information through
Section 702 is crucial to these national security efforts, the Government argues. (Doc. 191 at 53~
I 54.)

On the other side of the scale are the privacy interests that Defendants and other US.
persons and persons in the United States have in their electronic communications, both domestic
and international. (See Doc. No. 147 at 31.) This is not an insigni?cant interest, the Sixth Circuit
suggested in 2010:

Since the advent of email, the telephone call and the letter have waned in

importance, and an explosion of Internet-based communication has taken place.

People are now able to send sensitive and intimate information, instantaneously,
to friends, family, and colleagues half a world away. . . . Commerce has also

40

 

 

 

Case: Doc #2 374 Filed: 09/11/18 41 of 53. PagelD 9784

taken hold in email. Online purchases are often documented in email accounts,

and email is frequently used to remind patients and clients of imminent

appointment. In short, ?account? is an apt word for the conglomeration of stored

messages that comprises an email account, as it provides an account of its owner?s

life. By obtaining access to someone?s email, government agents gain the ability

to peer deeply into his activities.

Warshak, 631 F.3d at 284.

The Government contends U.S. persons and persons located in the United States have
signi?cantly diminished, or nonexistent, privacy interests in communications that ?have been
transmitted to or obtained from non?US. persons located abroad.? (Doc. No. 191 at 55.) The
Government notes that individuals have no constitutional interest in the communications
facilities used by the people targeted under Section 702. And the Government notes that
individuals lack a legitimate expectation of privacy in emails that have already reached their
recipient. (See id. at 56?57.)

I agree an individual loses some. expectation of privacy in an electronic communication
after it has reached its recipient. See Guest v. Let's, 255 F.3d 325, 333 (6th Cir. 2001) (?[Email
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)). But the loss is
not complete. See Warshak, 631 F.3d at 286?87 (holding that ?a subscriber a reasonable
expectation of privacy in the contents of emails cthat are stored with, or sent or received through,
a commercial and neither the ability nor the right of a third?party intermediary to. access
the contents of a communication is sufficient to extinguish a reasonable expectation of privacy
(citation omitted)). An individual still retains a limited expectation of privacy in his electronic

communications after the communication has reached its recipient. See Muhtomv, 187 F. Supp.

3d at 1255.

41

Case: Doc #2 374 Filed: 09/11/18 42 of 53., PagelD 9785

When this limited expectation of privacy in delivered electronic communications is
Weighed against the Government?s interest in acquiring foreign intelligence information through
Section 702, the Government?s interest prevails. And it prevails in large part because the
statutory safeguards and procedures required of the Government to convince me the acquisition
here was reasonable. Under Section 702: the DN1 and the Attorney General must certify that
targetng and minimization procedures are in place to protect the privacy of persons located in
the United States; the Government?s certi?cation, targeting procedures, and minimization
procedures are all subject to FISC review; targeting procedures must be ?reasonably designed? to
?ensure that any acquisition authorized under [the certi?cation] is limited to targeting persons
reasonably believed to be located outside the United States? and to ?prevent the intentional
acquisition of any communication as to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United States?; a signi?cant purpose of the
collection must be to obtain foreign intelligence information; minimization procedures limit how
long information concerning U.S. persons can be retained and how it can be disseminated; and
the DN1 and the Attorney General must periodically assess the Government?s compliance with
the targeting procedures, the minimization procedures, and with the relevant compliance
guidelines. (See Doc. No. 191 at 53?73.)

When viewed under the totality of the circumstances, I ?nd the Section 702 acquisitions
here were reasonable and did not violate the Fourth Amendment.

2. Statutory Argument

Defendants next ask for suppression of the evidence obtained or derived from Section
702- acquisitions because, they argue, the acquisitions may have violated Section 702?s statutory

procedures. I have carefully reviewed the ISA Section 702 materials submitted by the

42

 

 

 

Case: Doc #2 374 Filed: 09/11/18 43 of 53. PagelD 9786

Government. And based on that ex parte, in camera review, I conclude that all the statutorily?
required procedures were followed here. Defendants? request for suppression of the Section 702
materials is, accordingly, denied.

I now consider Defendants? request for notice and disclosure regarding surveillance

techniques (Doc. No. 131).

 

IV.
In a motion aimed broadly at all the Government?s surveillance, Defendants request

notice of (1) each surveillance technique the Government used to obtain information about his

 

communications or activities, (2) the timing or duration of each surveillance technique, (3) the
legal authority the Government relied upon in conducting the surveillance, and (4) the evidence
obtained or derived from each surveillance technique. (Doc. No. 131 at 1.) Defendants propose
the Government may have surveilled them using a variety of means and authorizations, including
PISA, FAA, Executive Order 12333, the Warrantless Wiretapping Program (also known as the
Terrorist Surveillance Program), and National Security Letters. (Id. at 

A. Due Process

Defendants begin by arguing the Constitution?s due process protections mandate the
Government?s disclosure of the requested information. (See Doc. No. 131 at 11?13.) None of the
cases cited by Defendants stand for that proposition though.

In United States v. United States Dist. Court (Keith), 407 U.S. 297, 318?24 (1972), for
example, the Supreme Court held that the Government must comply with the Fourth
Amendment?s requirement of prior judicial approval before conducting domestic security
surveillance. Because the Government?s surveillance in the underlying action was unlawful, the

Government was obligated to disclose the impermissibly intercepted conversations to the

43

Case: Doc #2 374 Filed: 09/11/18 44 of 53. PagelD 9787

defendant. 1d. at 324. Importantly though, the Supreme Court in Keith did not consider the
Fourth Amendment considerations associated with foreign intelligence surveillance??the
surveillance at issue here. Id. at 321?22. I

In Jencks v. United States, 353 U.S. 657, 672 (1957), the Supreme Court held that a
criminal action must be dismissed if the Government refuses to comply with an order to produce
?relevant statements or reports in its possession of government witnesses touching the subject
matter of their testimony at the trial.? Defendants, however, request information about
surveillance techniques, not statements or reports of Government witnesses.

Berger, Alderman, Kolod, and Dalia and are equally inapposite to Defendants? request.
Nowhere in these cases did the Supreme Court establish a broad right to notice of, and
information about, each surveillance technique used by the Government. In Berger, the Supreme
Court found that a New York eavesdrop statute violated the Fourth Amendment because the
statute?s ?blanket grant of permission to eavesdrop [was] without adequate judicial supervision
or protective measures.? Berger v. New York, 388 U.S. 41, 60 (1967). The statute was
unconstitutional because, among other reasons, it had no notice requirement and did not
?overcome [that] defect by requiring some showing of special facts.? Id. The Court?s conclusion
that the statute violated the Fourth Amendment did not, however, suggest that the Constitution?s
due process provisions grant criminal defendants a right to notice of all surveillance techniques.
In Alderman and Kolod, the Supreme Court outlined the procedures required when. the
government intends to use evidence from surveillance that, unlike here, has already been deemed
unlawful. See Aiderman v. United States, 394 U.S. 165, 182483 (1969) (holding that surveillance
materials needed to be produced and an adversarial hearing held where the prosecution planned

to use evidence from surveillance that had already been deemed unlawful); Koiod v. United

44

 

Case: Doc #2 374 Filed: 09/11/18 45 of 53. PagelD 9788

States, 390 US. 136, 137 (1968) (remanding and directing the district court to hold a hearing
where the government admitted that it had conducted unlawful electronic eavesdropping). And in
Dakar, the Supreme Court rejected the argument that the Fourth Amendment prohibits covert
entry onto private premises for the installation of legal electronic bugging equipment. See United
States v. Daiia, 441 US. 238, 246?48 (1979). Addressing this issue in the context of domestic
criminal surveillance authorized under Title of the Omnibus Crime Control and Safe Streets
Act of 1968, the Supreme Court noted that Title 111 provides a constitutionally adequate
substitute for advance notice by requiring subsequent notice to those surveilled. Id. at 248. The
Court did not establish a Constitutional right to notice of all surveillance techniques used to
surveil a criminal defendant.

B. Disclosure under 18 U.S.C. 3504

Defendants also cite 18 U.S.C. 3504 in support of their request. Under 3504, if an
aggrieved party claims that ?evidence is inadmissible because it is the primary product of an
unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of
the claim shall affirm or deny the occurrence of the alleged unlawful act.? 18 U.S.C. 
3504(a)(1). The statute provides that an ?unlawful act? is ?any act the use of any electronic,
mechanical, or other device . . . in violation of the Constitution or laws of the United States or

any regulation or standard promulgated pursuant thereto.? Id. 35 04(b).

Defendants request notice and information regarding each surveillance technique used by
the Government in this case. (See Doc. No. 131 at l, 22.) Defendants? request is undermined,
however, by the plain language of 3504. The statute mandates that the opponent of the
unlawful surveillance claim simply ?a?irm or deny the occurrence of the alleged unlawful act.?

18 U.S.C. 3504(a)(1) (emphasis added); see In re Grand Jury Subpoena 597 F.3d 189,

45

 

 

 

 

Case: Doc 374 Filed: 09/11/18 46 of 53. PagelD 9789

200 (4th Cir. 2010) (concluding that the Government satis?ed its ?obligation to af?rm or deny
Title 111 surveillance? where the Government responded to a demand under 18 U.S.C. 
3504(a)(1) by representing that relevant entities ?were not and are not a subject of electronic
surveillance pursuant to Title (internal quotation marks omitted?. The statute does not
provide for detailed disclosures regarding each surveillance technique allegedly used by the

- Government. See 18 U.S.C. 3504(a)(1).

When courts have directed the Government to provide more detailed af?rmations or
denials under 3504, they have typically done so only when the aggrieved party?s claim is
speci?c, concrete, and relevant. United States v. Amawi, 2007 WL 1431943, at *1
(N .D. Ohio May 14, 2007). Defendants? claim has none of those characteristics.

Defendants cite United States v. Alter, 482 F.2d 1016, 1027 (9th Cir. 1973), in support of
the proposition that 3504 requires more than an af?rmation or denial from the Government. In
Alter, the Government ?led an af?davit in response to the appellant?s allegations of unlawful
surveillance. Alter, 482 F.2d at 1027 n.17. The Ninth Circuit criticized the af?davit for its
failure to ?squarely . . . af?rm or deny? the appellant?s allegations. Id. at 1027. The af?davit
spoke ?in conclusory terms,? lacked information about the af?ant?s efforts to investigate the
appellant?s allegations, failed to explain why the af?ant contacted only a limited number of
agencies as part of his investigation, and neglected to reveal the dates of claimed surveillance
about which the af?ant inquired. Id. Integral to the Ninth Circuit?s discussion, however, was the
detailed nature of the appellant?s af?davits in which he laid out his allegations of unlawful
surveillance. See id. (?Alter?s af?davits were suf?ciently concrete and speci?c to make a prima
facie showing that on the occasions described someone was interfering with his telephone calls

and that the was involved?). As the court explained, the Government would only be

46

 

 

 

Case: Doc #2 374 Filed: 09/11/18 47 of 53. PagelD 9790

obligated to af?rm or deny alleged illegal surveillance under 3504(a) if an aggrieved party ?rst
?raise[s] a prima facie issue of electronic surveillance? by revealing through af?davits or other
evidence the dates the surveillance alleged took place and the speci?c facts supporting the
party?s allegations, among other things. Id at 1026.

But here, unlike in Alter, Defendants have not submitted an af?davit or other evidence
that makes a prima facie showing of unlawful surveillance. Consequently, even if I were to
follow the Ninth Circuit?s interpretation of 3504 as laid out in Alter, Defendants would still not
be entitled to the information they request.

C. FISA Surveillance

As a subset of their broader request, Defendants ask for additional information about the
Government?s ISA surveillance. The Government informed Defendants that it intended to offer
into evidence, or otherwise use or disclose in the case against them, information obtained or
derived from electronic surveillance, physical searches, and acquisitions under FISA Titles I and
and ISA Section 702. (Doc. Nos. 28, 29, 30.) These notices, Defendants argue, are
insuf?cient because they do not provide speci?c information about each search orseizure
conducted by the Government. (See Doc. No. 131 at 21.) Defendants request this additional
information based on their reading of text 50 U.S.C. 1806(0), 1825(d), 1881e)
and legislative history. (See id. at 14?21.)

?In all cases of statutory construction, the starting point is the language employed by
Congress.? Verges v. Gregg ?s Entera, Inc}, 159 F.3d 989, 990 (6th Cir. 1998) (quoting Appleton
v. First Nat ?l Bank 0f0lzz'0, 62 F.3d 791, 801 (6th Cir. 1995)). Where ?the statute?s language is
plain, ?the sole function of the courts is to enforce it according to its terms?? United States 12.

Ron Pair Enters, Inc, 489 U.S. 235, 241 (1989) (quoting Caminettz' v. United States, 242 U.S.

47

 

Case: Doc #2 374 Filed: 09/11/18 48 of 53. PagelD 9791

470, 485 (1917)). The Government?s noti?cation requirement under FISA Title I (electronic
surveillance), FISA Title (physical searches), and FISA Sections 702 and 703 (acquisitions)
reads as follows:

Whenever the Government intends to enter into evidence or otherwise use or

disclose in any trial, hearing, or other proceeding in or before any court,

department, of?cer, agency, regulatory body, or other authority of the United

States, against an aggrieved person, any information obtained or derived from

[electronic surveillance, a physical search, or an acquisition conducted] pursuant

to the authority of this [chapter], the Government shall, prior to the trial, hearing,

or other proceeding or at a reasonable time prior to an effort to so disclose or so

use that information or submit it in evidence, notify the aggrieved person and the

court or other authority in which the information is to be disclosed or used that the

Government intends to so disclose or so use such information.
50 U.S.C. 1806(c); see id. 1825(d), 1881c.6

Defendants interpret this notice requirement as obligating the Government to inform
them of the speci?c search or seizure events at issue, (ii) the information derived from each
event, and the ISA provision justifying each event. (See Doc. No. 131 at 21.) According to
Defendants, ?Congress? instruction that the government must provide notice prior to each
proceeding in which it intends to use or disclose FISA information strongly implies that
Congress intended the government to identify the substance of the information.? (Id. at 16.)

Defendants buttress their interpretation by noting Congress also authorized under PISA an

aggrieved person?s request for suppression on the grounds that the information was

 

6 A similar notice requirement applies to the Government?s use of information obtained or derived from a
pen register or trap and trace device. 50 U.S.C. 1845(c). Defendants, however, do not specifically
request information about collections made under that title. (See Doc. No. 131 at 14?21.) Nor do
Defendants cite 1845(0), the applicable notice requirement. (See id.)

FISA does not include a notice requirement regarding information obtained or derived from
acquisitions under Section 215 (50 U.S.C. 18614864), Section 704 (50 U.S.C. 18810), or Section
705 (50 U.S.C. 1881d). Defendants, in turn, do not specifically request information about acquisitions
that may have been made under these sections. (See Doc. No. 131 at 14~21.)

48

Case: Doc #2 374 Filed: 09/11/18 49 of 53. PagelD 9792

unlawfully acquired; or (2) the surveillance was not made in conformity with an order of
authorization or approval.? (Id (quoting 50 U.S.C. 

I disagree with Defendants? reading of the notice requirement. Defendants? interpretation

 

adds three elements to the notice requirement that are found nowhere in the text. The notice
requirement is straightforward. It applies to ?any information obtained or derived from
[electronic surveillance, a physical search, or an acquisition]? that the Government ?intends to
enter into evidence or otherwise use or disclose [at trial].? 50 U.S.C. 1806(c); see id. 
1825(d), lSSle. And it obligates the Government to. ?notify the aggrieved person . . . that the
Government intends to so disclose or so use such information.? 50 U.S.C. 1806(c) (emphasis
added); see id 1825(d), 1881c.

Defendants focus on the timing of the required the Government
intends to enter into evidence or otherwise use or disclose in any trial, hearing, or other
proceeding in or before any court.? 50 U.S.C. 1806(c); see also id. 1825(d). But the
Government?s obligation to provide notice of its intent to use information gathered under FISA
?[W]henever the Government intends to enter [it into] evidence or otherwise use or disclose 
offers no insight into the content of the required disclosure, and it certainly does not imply that
the Government must disclose the specific information about each search or seizure conducted
under FISA that Defendants request.

That FISA provides an aggrieved party a statutory basis for suppressing information
gathered under its provisions does not support Defendants? interpretation of the notice
requirement either. Defendants contend that a lawyer ?cannot possibly prepare or ?le a motion to
suppress ?the evidence obtained or derived from? FISA on the ground that the evidence was

unlawfully acquired unless the defendant has notice of which information was obtained by FISA,

49

Case: Doc #2 374 Filed: 09/11/18 50 of 53. PagelD 9793

and the FISA authority under which it was sought.? (Doc. No. 131 at 17 (quoting 50 U.S.C. 
Defendants, however, have done what they claim to be impossible. They have moved
to suppress the evidence obtained or derived from FISA Titles I and and FISA Section 702.
Although Defendants? suppression motions were ultimately unsuccessful, their lack of success
did not derive from Defendants? inability to prepare or ?le a suppression motion. Defendants,
like others with standing to challenge FISA surveillance, raised their suppression motions based
on a Government notice that simply communicated the Government?s intent ?to offer into
evidence, or otherwise use or disclose in any proceedings. . . information obtained or derived
from? FISA collections. (E. g, Doc. No. 28.) Defendants, moreover, seem to overlook 
actual language regarding motions to suppress. The statute does not require that an aggrieved
person identify the challenged evidence with speci?city. The statute offers a broad statement of
the evidence that an aggrieved person may move to suppress: he ?may move to suppress the
evidence obtained or derived from electronic surveiilance.? 50 U.S.C. 1806(e) (emphasis
added); see id. 1825(f), 1881e.

Given the clarity of the statute, I need not delve into legislative history. The
Government?s notice requirement under FISA does not entail anything beyond what the
Government has already provided to Defendants.

D. Prior Searches and Seizures

As a further subset of their discovery request, Defendants ask for additional information
about the ?prior searches and seizures? through which the Government obtained evidence to
support its ?applications for search warrants under Federal Rule of Criminal Procedure 41 
(Doc. No. 131 at 25.) Citing Franks v. Delaware, 438 U.S. 154, 155?56 (1978), Roviaro v.

United States, 353 U.S. 53, 59 (1957), and Federal Rule of Criminal Procedure 

50

 

Case: Doc #2 374' Filed: 09/11/18 51 of 53. PagelD 9794

Defendants seek ?information material to determining the legality? of the alleged prior searches
and seizures. (Doc. No. 131 at 25.)

None of these authorities substantiates Defendants? request. Under Franks, a court will
hold an evidentiary hearing to examine the suf?ciency of an af?davit supporting a ?nding of
probable cause when the criminal defendant has made a substantial preliminary showing that the
af?davit in question contains a false statement which was (I) knowingly or recklessly made and
(2) necessary to the ?nding of probable cause. See Franks, 438 U.S. at 15 5?56, 171~72.
Nowhere in Franks, however, did the Supreme Court mandate that the Government disclose
information about searches and seizures. See generally id.

In Rovfam, the Supreme Court identi?ed several exceptions to the ?informer?s

privilege?L?that is, the Government?s ability to withhold from disclosure an informant?s identity.

The Govemment?s privilege must give way, the Court stated, here the disclosure of an

. informer?s identity, or of the contents of his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair determination of a cause.? Roviaro, 353 U.S. at
60?61. Because Defendants do not seek to uncover the identity of a Government informant, or
obtain the contents of an informant?s communication, Roviaro lends no support to Defendants?
request.

Defendants also bring their request under Federal Rule of Criminal Procedure 16.
Information about the alleged prior searches and seizures is purportedly material to preparing a
defense, and thus discoverable under Rule because Defendants might be able to
use the information to suppress evidence obtained pursuant to the Government?s subsequent,
Rule 41 search warrants. (See Doc. No. 131 at 26 (?Evidence obtained pursuant to a search

warrant may . . . be suppressed if the af?ant relied on evidence obtained or derived from .

51

Case: Doc #2 374 Filed: 09/11/18 52 of 53. PagelD 9795

unlawful government action and the affidavit fails to establish probable cause absent that
if

But Defendants read Rule too broadly. The Rule only applies to ??shield?

 

claims that ?refute the Government?s arguments that the defendant committed the crime
charged? United States v; Robinson, 503 F.3d 522, 532 (6th Cir. 2007) (quoting United States v.
517 US. 456, 462 (1996)). Moreover, under Rule information is not
material ?merely because the government may be able to use it to rebut a defense position.?
United States v. Lykins, 428 F. App?x 621, 624 (6th Cir. 2011) (quoting United States v. Stevens,

985 F.2d 1175, 1180 (2d Cir. 1993)). Information is material only if ?there [is] an indication that

 

pre-trial disclosure would have enabled the defendant to ?alter the quantum of proof in his
favor.? Id. (quoting Stevens, 985 .2d at 1180).

Defendants do not request information about the alleged prior searches and seizures to
refute the Government?s arguments that they committed the crimes charged the
Government?s Rather, Defendants request the information because it might allow
them to move for suppression of unidenti?ed evidence obtained pursuant to subsequent search
warrants. (See Doc. No. 131 at 26.) Defendants imply that the requested information would alter
the quantum of proof in this case. (See id.) The connection is too attenuated though. Information
about the alleged prior searches and seizures is too disconnected from actually altering the
quantum of proof in Defendants? favor for the information to be material under Rule
See Lyicins, 428 F. App?x at 624.

Neither Franks, Roviaro, nor Rule entitles Defendants to the discovery

they request.

52

Case: Doc #2 374 Filed: 09/11/18 53 of 53. PagelD 9796

E. CIPA

Lastly, Defendants argue that the Government may not rely on the Classi?ed Information
Procedures Act in refusing to disclose the requested information about its surveillance
techniques. (See Doc. No. 131 at 24.) In a concurrently isSued Memorandum Opinion, however, I
have determined that I may review the Government?s CIPA 4 submission in camera and ex
parte. And to the extent that the information requested by Defendants may have been addressed
in the Government?s CIPA 4 submission, I have already determined the Government may
delete that information from the documents to be produced to Defendants through discovery.
(See id. at 

For all of these reasons, I deny Defendants? request for notice and disclosure regarding
the Government?s surveillance techniques.

V.
Each of Defendantsa motions (Doc. Nos. 131, 140, 146, 148, 156) is, accordingly, denied.

So Ordered.

s/ Jeffrey J. Helmick
United States District Judge

 

53