On
February 22, 2013, “after 17 days of trial and deliberations,” a federal jury
convicted cab driver Basaaly Saeed Moalin and three other defendants of
(1) conspiracy to provide material support to terrorists in
violation of 18 U.S. Code § 2339A(a); (2) conspiracy to provide material
support to a foreign terrorist organization in violation of 18 U.S. Code §2339B(a)(1); (3) conspiracy to launder monetary instruments in violation of 18U.S. Code § 1956(h); (4) providing material support to terrorists in violation
of 18 U.S. Code § 2339A(a); and (5) providing material support to a
foreign terrorist organization in violation of 18 U.S. Code §§ 2339B(a)(1) and (2).
U.S. v. Moalin, 2013 WL 6079518 (U.S. District Court for the Southern District of California 2013).
If you are
interested, you can read more about the case and the trial, and read case files
in the prosecution, in the story you can find here. And as this press release explains, Moalin was
sentenced to 18 years in prison on November 13, 2013. On November 18, 2013, the U.S. District Court Judge who has the case denied Moalin’s motion for a new trial. U.S. v. Moalin, supra.
Under Rule 33(a) of the Federal Rules of Criminal Procedure, a defendant can base a motion
for a new trial on a claim that “the interest of justice so requires.” The judge in this case found that was the
basis for Moalin’s motion, which argued that “recent revelations by [Edward] Snowden
and Government officials regarding NSA surveillance in this particular case
warrant the suppression of all intercepted conversations.” U.S. v. Moalin, supra. As
this article notes, NSA surveillance and phone intercepts played an important
role in the prosecution.
Moalin
made several arguments in his motion, but this post only examines one of
them: that the National Security Agency’
“intercepts and/or collection of electronic data related to: Moalin violated
the 4th Amendment. U.S. v. Moalin, supra. More precisely,
Moalin claimed the government’s “collection of telephony metadata” violated his
rights under the 4th Amendment. U.S.
v. Moalin, supra. The court
explained that
[a]t issue are two distinct uses of telephone metadata obtained from Section 215 [of the USA Patriot Act]. The first use involves telephony metadata retrieved from
communications between third parties, that is, telephone calls not involving [Moalin].
[Moalin
has] no reasonable expectation of privacy to challenge any use of telephony
metadata for calls between third parties. See Steagald v. U.S., 451 U.S. 204 (1981) (4th Amendment rights are personal in nature); Rakas v. Illinois, 439 U.S. 128 (1978) (`4th Amendment rights are
personal rights which, like some other constitutional rights, may not be
vicariously asserted’); U.S. v. Verdugo-Urquidez, 494 U.S.259 (1990) (the term `people’ described in the 4th Amendment are persons
who are part of the national community or may be considered as such).
As noted in Steagald, `the rights
[ ] conferred by the 4th Amendment are personal in nature, and cannot bestow
vicarious protection on those who do not have a reasonable expectation of privacy
in the place to be searched.’ . . . As individuals other than [Moalin]
were parties to the telephony metadata, [he] cannot vicariously assert 4th Amendment rights on behalf
of these individuals. To this extent, the court denies the motion for new
trial.
U.S. v. Moalin, supra.
The
explained that the “second use of telephony metadata involves communications
between individuals in Somalia (or other countries) and” Moalin. U.S. v. Moalin, supra. The judge therefore analyzed whether
Moalin, “and other Defendants through him, have any reasonable expectation of
privacy in telephony metadata between Moalin and third parties, including
co-defendants.” U.S. v. Moalin, supra.
He began
by noting that in Smith v. Maryland, 442 U.S. 735 (1979), “the Supreme Court addressed whether the 4th Amendment was
violated when the telephone company, at police request and without a warrant,
installed a pen register to record numbers dialed from petitioner Smith's home.” U.S. v.
Moalin, supra. The judge then
explained that
[c]onsistent with Katz v. U.S., 389 U.S. 347 (1967),
the [Smith] Supreme Court held that
the application of the 4th Amendment `depends on whether the person invoking
its protection can claim a . . . a “reasonable,” or a “legitimate expectation
of privacy” that has been invaded by government action.’
A . . . reasonable, or
legitimate expectation of privacy is one where (1) the defendant, by his
conduct, has `exhibited an actual (subjective) expectation of privacy,’ and (2)
the individual's subjective expectation of privacy is `one society is prepared
to recognize as “reasonable,”’ that is, whether the individual's expectation,
‘viewed objectively is “justifiable under the circumstances.”’ Smith v. Maryland, supra (quoting Katz v. U.S., supra).
The Supreme Court noted that someone who uses a
telephone has ‘”voluntarily conveyed numerical information to the telephone
company and exposed’ that information to its equipment in the ordinary course
of business,’ and therefore has `assumed the risk that the company would reveal
to police the numbers he dialed.’ Smith
v. Maryland, supra.
The Supreme Court has consistently held `that a person has no
legitimate expectation of privacy in information he voluntarily turns over to
third parties.’ Smith v. Maryland,
supra; U.S. v. Miller, 425 U.S. 435 (1976) (`the 4th Amendment
does not prohibit the obtaining of information revealed to a third party and
conveyed by him to United States authorities, even if the information is
revealed on the assumption that it will be used only for a limited purpose and
the confidence placed in the third party will not be betrayed’).
U.S. v. Moalin, supra. For more on the Katz-Smith
standards, check out this prior post.
Moalin
argued that, notwithstanding these and other precedents, the judge should
blaze a new path and adopt the approach to the concept of
privacy set forth by Justice Sotomayor in her concurrence in U.S. v. Jones, 132 S.Ct. 945 (2012). In Jones, the Supreme
Court considered whether the installation and subsequent monitoring of a Global
Positioning System tracking device on an automobile by the police without a
valid warrant and without the individual's consent violated the 4th Amendment.
Noting that 4th Amendment jurisprudence, up to the latter
half of the 20th century, was tied to common-law trespass principles, the
majority held that `[w]here, as here, the Government obtains information by
physically intruding on a constitutionally protected area,’ the 4th Amendment
is violated. U.S. v. Jones, supra.
As noted by [Moalin], Justice
Sotomayor stated that the recent rise of the digital era of cell phones,
internet, and email communications may ultimately require a reevaluation of `expectation
of privacy in information voluntarily disclosed to third parties.’ U.S. v.
Jones, supra.
[Moalin] extrapolate[s] from this dicta that the court should
recognize that [he] had a reasonable expectation of privacy cognizable under
the 4th Amendment that the Government would not collect either individual or
aggregated metadata.
U.S. v.
Moalin, supra.
The judge
found that the “difficulty” with Moalin’s argument
is twofold. First, the use of pen register-like devices -- going
back to Samuel Morses's 1840 telegraph patent -- predates the digital era and
cannot be considered a product of the digital revolution like the internet or
cell phones. See Samuel F.G. Morse, Improvement in the Mode
of Communicating Information by Signals by the Application of
Electro–Magnetism, U.S. Patent 1647, June 20, 1840, page 4 column 2.
In short, pen register-like devices predate the internet era
by about 150 years and are not a product of the so-called digital
revolution-the basis for the concerns articulated by Justice Sotomayor. Second,
and more importantly, the Supreme Court specifically and unequivocally held in Smith that
retrieval of data from a pen register by the Government without a search
warrant is not a search for 4th Amendment purposes. Smith v. Maryland, supra.
Because individuals voluntarily convey
numerical information to the telephone company to complete a telephone call,
one cannot possess a reasonable expectation of privacy in the telephone number
dialed (as opposed to the content of the conversation). Smith v. Maryland, supra.
For these
reasons, the court declines [Moalin’s] invitation to depart from well-established
precedent.
U.S. v. Moalin, supra.
The judge
also explained that when
Moalin used his telephone to communicate with third parties,
whether in Somalia or the United States, he had no legitimate expectation of
privacy in the telephone numbers dialed. The calls were routed through the
communications company and its switching equipment in the ordinary course of
business.
While Moalin may have had some degree of a subjective expectation of
privacy, that expectation is not “one that society is prepared to recognize as
reasonable.” Rakas v. Illinois, supra (quoting Katz v. U.S.
supra).
Furthermore, where the calls were initiated by third parties,
whether from Somalia or other countries, Moalin's subjective expectation of
privacy is even further diminished because Moalin cannot assert 4th Amendment
principles on behalf of third parties. The court could not locate any
authorities, nor [does Moalin] cite any pertinent authorities, that recognize
any expectation of privacy in the receipt of telephone call data from a third
party in a foreign country.
As in Smith, because the metadata was
obtained through communications companies and their switching equipment, Moalin
`cannot claim that his property was invaded or that police intruded into a “constitutionally
protected area.’’” Smith v. Maryland,
supra.
While technology continues to advance through the implementation of
new devices and methods, the legal analysis remains fairly constant: whether
“the government violate[d] a subjective expectation of privacy that society
recognizes as reasonable.” Kyllo v. U.S., 533 U.S. 27 (2001).
For the above stated reasons, [Moalin’s] minimal subjective belief in the
privacy of telephony metadata is not one that society has adopted.
U.S. v. Moalin, supra.
In a
footnote to the comment about intrusions into a “constitutionally protected
area”, the judge pointed out that Moalin
lacks standing to challenge the metadata collected in reference
to communications initiated by third parties. The 4th Amendment rights are
“personal in nature” and Defendant Moalin cannot assert any 4rth Amendment
right on behalf of any party subject to the collection of telephone metadata. See Steagald v. U.S., supra.
U.S. v. Moalin, supra.
For these
and other reasons, the judge denied Moalin’s motion for a new trial. U.S. v. Moalin, supra.
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