Newspaper article The Christian Science Monitor

Appeals Court Hears Warrantless Spying Case. Could It Change Surveillance Law?

Newspaper article The Christian Science Monitor

Appeals Court Hears Warrantless Spying Case. Could It Change Surveillance Law?

Article excerpt

In a case with wide-reaching implications, a federal appeals court is set to hear arguments Wednesday on whether the US government's warrantless electronic surveillance program violates the Constitution's privacy protections.

Somali-American Mohamed Mohamud is challenging his conviction for attempting to detonate a bomb during a 2010 Christmas tree-lighting ceremony in Portland, Ore., arguing that he was entrapped by federal agents posing as members of Al Qaeda. The bomb was actually fake, and part of an undercover operation.

On Wednesday, a three-judge panel of the Ninth Circuit Court of Appeals will hear Mr. Mohamud's argument that federal agents gathered evidence against him unconstitutionally, through programs intended for surveillance of foreign targets, not American citizens. Mohamed is a naturalized US citizen.

After his 2012 conviction, Mohamud and his lawyer were informed that evidence against him had been collected using the Foreign Intelligence Surveillance Act (FISA), a controversial law amended in 2008 that was originally intended to allow the government to collect information on foreign nationals.

Since then, many civil liberties groups have charged that FISA, especially a portion known as Section 702, has been used to justify warrantless electronic surveillance programs that gathered up many Americans' phone and internet records.

It's still too early to tell, but the case could challenge how the government obtains such information, says Brian Owsley, an assistant professor of law at the University of North Texas at Dallas.

"There have been arguments that these programs cannot be applied to US citizens. Arguably, this is a warrantless search that violates the constitution," writes Professor Owsley, a former federal magistrate judge in Texas, in an email to The Christian Science Monitor.

"If that is determined, then any evidence from this search could be excluded and lead to the conviction being overturned and a new conviction [made] much more difficult or impossible," he adds.

Lawyers for Mohamud are arguing that Section 702 bars the government from retaining and accessing the communications of US citizens, meaning the government's actions in obtaining evidence against him are potentially unconstitutional.

Two of the surveillance programs disclosed by former NSA contractor Edward Snowden, Prism and Upstream, were enabled by Section 702, Reuters reports. The Prism program involves warrantless collection of users' communications from large tech firms, including Google, Apple and Facebook, according to the American Civil Liberties Union (ACLU), which has filed a friend-of-the-court brief challenging the surveillance practices.

Upstream allows the agency to search the internet "backbone" inside the US, letting the agency search for particular terms that are associated with its targets. …

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