Wednesday, December 09, 2015

Iran, the International Economic Emergency Powers Act and the Laptop

The opinion this post examines comes from a U.S. District Court Judge who sits in the U.S. District Court for the District of Columbia:  U.S. v. Hassanshahi, 2015 WL 7303515 (2015). The judge begins the opinion by explaining that
Shantia Hassanshahi is charged with one count of conspiracy to violate the International Economic Emergency Powers Act, 50 U.S. Code § 1705, and the Iranian Transactions and Sanctions Regulations, 31 C.F.R. §§ 560.203 - 204, commonly referred to as the United States' trade embargo against Iran.

In December 2014, the Court denied a motion by Hassanshahi to suppress certain evidence discovered during a forensic examination of his laptop computer, holding, in relevant part, that discovery of the evidence was sufficiently attenuated from a search of a mysterious telephony database that the Court assumed, for purposes of its analysis and at the Government's suggestion, was unconstitutional. See U.S. v. Hassanshahi, 75 F.Supp.3d 101. . . .

Following the Court's decision, Hassanshahi has argued, both orally before the Court and in rounds of supplemental briefing . . ., that suppression of the evidence is warranted in light of both additional information concerning the database that the Government provided after the Court's ruling and the Second Circuit's recent decision concerning a different government database in ACLU v. Clapper, 785 F.3d 787 (U.S. Court of Appeals for the 2d Circuit 2015).
U.S. v. Hassanshahi, supra.  The news story you can find here provides some additional information about this case and what had happened prior to the issuance of this opinion.
The judge also noted, in a later paragraph in his opinion, that he was “constru[ing] these arguments as a motion for reconsideration of the Court's denial of Hassanshahi's motion to suppress.”  U.S. v. Hassanshahi, supra.  He went on to reconsider his earlier ruling, as is outlined below.
The judge began by outlining the background of the litigation, and the presumed motion:
The Indictment against Hassanshahi alleges that, beginning in or around March 2009, Hassanshahi engaged in a conspiracy to export or cause the exportation of goods and technology from Canada to Iran, as well as related services from the United States to Iran, without first having obtained a license from the Office ofForeign Assets Control, in violation of federal law. See Indictment ¶ 1, ECF No. 7.

At trial, the Government seeks to introduce evidence discovered during a forensic examination of Hassanshahi's laptop computer, which the Government seized from  Hassanshahi in January 2012 upon his arrival from the United States at the Los Angeles International Airport (`LAX’). The Government's search and seizure of that evidence was the result of an investigation that began at least as early as August 2011. . . . In August 2011, Homeland Security Investigations (`HSI’) received an unsolicited e-mail from a source concerning an Iranian individual named `Sheikhi’ who was seeking to procure protection relays for an Iranian power project. . . . Later the same month, HSI requested a search of a law enforcement database using a telephone number it knew to be associated with Sheikhi. That search returned a single telephone record of one call between the searched telephone number and a California telephone number with an 818 area code that HSI later determined, through its subsequent investigation, was registered to Hassanshahi. . . . Over the course of the next several months, HSI investigated Hassanshahi, which ultimately led to the search and seizure of his laptop computer at LAX.
U.S. v. Hassanshahi, supra.  He went on to explain that Hassanshahi moved to
suppress the evidence discovered through the forensic examination of his laptop, asserting, in relevant part, that HSI's search of the law enforcement database constituted an unconstitutional search and that the evidence should be excluded under the fruit of the poisonous tree doctrine. . . .  The Court denied Hassanshahi's motion, holding, in relevant part, that the exclusionary rule did not require suppressing the evidence as `fruit of the poisonous tree,’ because discovery of the evidence was sufficiently attenuated from the purportedly unlawful search of the database. . . . The Court reached this holding based on limited information concerning the database at issue, because . . . the Government refused to provide details concerning the database and instead asked the Court to assume arguendo that the database was unconstitutional. . . .

In its analysis, the Court therefore proceeded on the assumption that the database and HSI's search of the database were unconstitutional and nevertheless concluded that the exclusionary rule did not require suppression. . . . Although the Court was unequivocal in its holding, it also ordered the Government to provide the Court with more information concerning the database. . . .
U.S. v. Hassanshahi, supra. 
The District Court Judge then pointed out that the
Government complied with the Court's order by providing a declaration from Robert Patterson, an Assistant Special Agent in Charge at the United States Drug Enforcement Administration (`DEA’), which the Government initially filed ex parte and under seal and later filed publicly in redacted form.  See  Decl. Robert Patterson, ECF No. 49-1 (publicly-filed redacted version). In this declaration, Patterson explained that the database at issue `consisted of telecommunications metadata obtained from United States  telecommunications providers pursuant to administrative subpoenas served upon the service providers under the provisions of 21 U.S. Code § 876.Id. ¶ 4. The referenced statutory provision authorizes the Attorney General to issue administrative subpoenas in `any investigation’ relating to his drug enforcement function. See 21 U.S.C. § 876. Patterson provided further detail concerning the metadata stored in the database:

`This metadata related to international telephone calls originating in the United States and calling [REDACTED] designated foreign countries, one of which was Iran, that were determined to have a demonstrated nexus to international drug trafficking and related criminal activities. This metadata consisted exclusively of the initiating telephone number; the receiving telephone number; the date, time, and duration of the call; and the method by which the call was billed. No subscriber information or other personal identifying information was included in this database. No communication content was included in this database.’

Patterson Decl. ¶ 4. Patterson further stated that the DEA database `could be used to query a telephone number where federal law enforcement officials had a reasonable articulable suspicion that the telephone number at issue was related to an ongoing federal criminal investigation’ and that the standard had been met with respect to the search that returned Hassanshahi's telephone number. . . . Patterson also stated that use of this particular database was suspended in September 2013 and that `information is no longer being collected in bulk pursuant to 21 U.S. Code § 876’. Id. ¶ 6.
U.S. v. Hassanshahi, supra. 
The opinion goes on to explain that a
status conference before the Court on January 29, 2015 following the filing of Patterson's redacted declaration, counsel for Hassanshahi sought permission to renew his motion to suppress based on the new information concerning the DEA database. The Court directed the Government to provide briefing concerning two issues: first, whether information obtained by one law enforcement agency for one purpose may lawfully be shared with another law enforcement agency for another purpose; and second, whether a remedy of suppression existed for a non-constitutional violation of law. The Government submitted a brief on these issues, and Hassanshahi filed a brief in response, to which the Government filed a reply brief. . . .

In May 2015, the Second Circuit decided ACLU v. Clapper, supra, holding that a counterterrorism telephony metadata program maintained by the National Security Agency (`NSA’), which this Court discussed in its denial of the motion to suppress, exceeded the program's statutory authorization. See ACLU v. Clapper, supra. . . .  The parties have also submitted briefs concerning the effect, if any, that the Second Circuit's decision might have on the issues presented in this case. . . .
U.S. v. Hassanshahi, supra. 
The judge then began his analysis of the issues in the case, noting, first, that both Hassanshahi and the government advanced arguments that could be `grouped’ into two major issues for the Court to consider: first, whether Hassanshahi may seek suppression of the laptop evidence by challenging the statutory validity of the DEA database, as opposed to its constitutionality; and second, whether the new information disclosed by the Government concerning the database and the Second Circuit's decision in Clapper require the Court to reverse its prior decision and suppress the evidence on constitutional grounds. 
U.S. v. Hassanshahi, supra. 
He began his analysis with Hassanshahi’s statutory argument, explaining that the
Government argues that Hassanshahi cannot challenge the statutory validity of the DEA database for two reasons. First, the Government argues that [he] cannot challenge the DEA's collection of the metadata contained in the database from telecommunications service providers, because he lacks `standing’ to challenge administrative subpoenas directed to third parties. Second, the Government argues that Mr. Hassanshahi cannot challenge the DEA's dissemination of that information to HSI, because it is a longstanding rule that one law enforcement agency may share information it has collected for one purpose with another law enforcement agency for a different purpose.
U.S. v. Hassanshahi, supra. 
The judge went on to point out that, with regard to the
DEA's collection of the metadata, the Court observes that Hassanshahi is not the first criminal defendant to challenge an administrative subpoena issued to a third party under Section 876. In U.S. v. Moffett, a case somewhat similar to this one, a criminal defendant challenged the Attorney General's authority to issue a subpoena to a third party under Section 876 purely on statutory grounds and sought to suppress the evidence gained through its use. See U.S. v. Moffett, 84 F.3d 1291 (U.S. Court of Appeals for the 10th Circuit 1996). U.S. v. Moffett, supra.

The Tenth Circuit denied the defendant's attempted challenge, because it found the defendant did not come within `the zone of interest the statute is meant to protect.’  In its reasoning, the court observed that Section 876 `is written to give the DEA broad powers to investigate violations of federal drug laws’ and `provides no express right to challenge the Attorney General's subpoenas issued under it.’ U.S. v. Moffett, supra. . . .

In his limited response, Hassanshahi points to Clapper, in which the Second Circuit held . . . that targets of orders issued pursuant to Section 215 of the PATRIOT Act could bring suit against the Government challenging the orders under the Administrative Procedure Act even though they were not the recipients of the orders. See ACLU v. Clapper, supra. Hassanshahi, however, neither references the Administrative Procedure Act nor explains how the Second Circuit's reasoning would apply in this case, in which, as a criminal defendant, he seeks to challenge the validity of a different program under an administrative subpoena statute.
U.S. v. Hassanshahi, supra. 
The judge then pointed out that, with
respect to the DEA's dissemination of the metadata to HSI, the Government argues that the DEA `acted consistently with the longstanding legal rule that “[e]vidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different from that for which it was originally taken.”’ Gov't's February 25 Brief at 4 (quoting Jabara v. Webster, 691 F.2d 272 (U.S. Court of Appeals for the 6th Circuit 1982)). This rule, however, concerns only the constitutionality of HSI's query of the DEA database and does not squarely address the issue of whether the query violated Section 876. The Government observes that Hassanshahi `has not identified any statutory or regulatory provision that would proscribe the sharing of information between law enforcement agencies as part of a legitimate law enforcement investigation.’ Gov't's Feb. 25 Brief at 4–5.

Hassanshahi argues in response that the Government's actions violated Section 876 because the Government `must have known of the unrestricted use of the database while serving the subpoenae (at some point it became obvious that the database was being used for non-drug investigations, but government continued gathering the telephony records).’ Def.'s Apr. 13 Brief at 6.

Ultimately, the Court need not determine here who may or may not challenge the statutory validity of the DEA's collection of the metadata or whether Section 876 imposes any limitations on the DEA's ability to share data, because . . . the Court finds that, even if Hassanshahi could challenge the statutory validity of the DEA database, suppression of the evidence would not be an available remedy.
U.S. v. Hassanshahi, supra. 
He then began his analysis of Hassahshahi’s appeal of his earlier ruling “denying  Hassanshahi's motion to suppress the evidence on constitutional grounds.” U.S. v. Hassanshahi, supra.  The judge explained that in the earlier ruling, he noted that
under the fruit of the poisonous tree doctrine, an illegal search or seizure requires the exclusion at trial of not only the evidence seized in violation of the Fourth Amendment, but also any evidence obtained as a result of that seizure if the `seizure is a but-for cause of the discovery of the evidence (a necessary condition), and if the causal chain has not become “too attenuated to justify exclusion,”’ U.S. v. Brodie, 742 F.3d 1058 (U.S. Court of Appeals forthe D.C. Circuit 2014) (quoting Hudson v. Michigan, 547 U.S. 586 (2006)), `or, to put the same point with another metaphor, if circumstances have not “purged [the evidence] of the primary taint.”’ U.S. v. Brodie, supra. . . . (quoting Wong Sun v. U.S.,371 U.S. 471 (1963)).

The Court found that the exclusionary rule did not require suppression, because `the causal chain leading to the discovery of the laptop evidence was too attenuated to justify exclusion.’ U.S. v. Hassanshahi (2014), supra. . . .
U.S. v. Hassanshahi, supra. 
The judge therefore held that “[s]ince the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.”  U.S. v. Hassanshahi, supra (emphasis in the original).  So he denied Hassanshahi’s motion for reconsideration.  U.S. v. Hassanshahi, supra.  

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