The Foreign Intelligence Surveillance Court (FISC), also known as the FISA Court, is a specialized federal court established under the Foreign Intelligence Surveillance Act (FISA) of 1978. The court is responsible for reviewing applications for warrants related to national security investigations.
The purpose of the FISC is to provide oversight of the government’s surveillance activities, including electronic surveillance and physical searches, to ensure that they comply with constitutional and statutory requirements. The court also approves or denies applications for warrants related to national security investigations.
Targets of FISA court activities may not be aware of what is going on. In many cases, the government conducts surveillance without notifying the target of the investigation. This is because the government believes that providing notice to the target could compromise the investigation or national security interests.
However, in some cases, the target of FISA court activities may receive notice of the surveillance. For example, if the government intends to use information obtained through FISA surveillance in a criminal prosecution, they may be required to provide notice to the target of the investigation.
Targets of FISA court activities may be able to intervene in certain circumstances. The FISC has established procedures that allow targets of FISA surveillance to petition the court for relief. For example, a target of surveillance may be able to challenge the legality of the surveillance or request that the government disclose any information obtained through the surveillance.
If a Section 702 search results in evidence of a violation of US laws, the government may be able to use that evidence in a criminal court case in the United States. However, there are certain limitations on the use of evidence obtained through Section 702 surveillance.
Under the “minimization procedures” established by the government, information obtained through Section 702 surveillance must be reviewed to ensure that it is relevant to foreign intelligence purposes and that it does not contain unnecessary personal information about U.S. citizens or residents. If the information obtained is determined to be irrelevant or contains personal information, it must be deleted or minimized to the extent possible.
However, if the information obtained through Section 702 surveillance is determined to be relevant and not subject to minimization, it may be used in criminal prosecutions. The government is required to disclose any such evidence to the defendant in criminal cases, including information obtained through Section 702 searches.
The use of evidence obtained through Section 702 surveillance in criminal cases has been the subject of constitutional challenges. The Fourth Amendment to the US Constitution protects individuals against unreasonable searches and seizures, and some argue that the collection of electronic communications through Section 702 searches without a warrant violates this protection.
In the case of United States v. Mohamud, the Ninth Circuit Court of Appeals held that the use of evidence obtained through Section 702 surveillance did not violate the Fourth Amendment in that particular case.
In United States v. Mohamud, the Ninth Circuit Court of Appeals considered whether the government’s use of evidence obtained through Section 702 surveillance violated the defendant’s Fourth Amendment rights. The case involved a Somali-American man named Mohamed Osman Mohamud who was charged with attempting to use a weapon of mass destruction in connection with a plan to bomb a Christmas tree lighting ceremony in Portland, Oregon.
Through a series of undercover contact and other evidence the case was brought. Part of the evidence used against him at trial was Section 702 derived as part of surveillance against a foreign-national where his email message was inadvertently collected. Despite the statutory requirement that the government disclose pretrial that this evidence was gathered pursuant to Section 702, the government did not and revealed it post conviction.
The key facts were beyond dispute namely that the government had obtained evidence against Mohamud through Section 702 surveillance. This evidence was used in his trial against him. Specifically, the government had intercepted emails between Mohamud and a known terrorist overseas, which led to his arrest and eventual conviction. Mohamud challenged the use of this evidence on the grounds that it violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.
The Ninth Circuit Court of Appeals ultimately upheld the use of the evidence obtained through Section 702 surveillance in Mohamud’s case. It was a very narrow ruling and therefore not of great value as a precedent.
The court also found that the government’s use of Section 702 surveillance was reasonable under the Fourth Amendment. The court noted that Section 702 surveillance is subject to a number of limitations and safeguards, including minimization procedures designed to protect the privacy of US persons. The court also found that the government’s use of the evidence obtained through Section 702 surveillance was narrowly tailored to serve a compelling government interest in preventing terrorist attacks.
That Court wrote:
“ Although § 702 potentially raises complex statutory and constitutional issues, this case does not. As explained below, the initial collection of Mohamud’s email communications did not involve so-called “upstreaming” or targeting of Mohamud under § 702, more controversial methods of collecting information. It also did not involve the retention and querying of incidentally collected communications. All this case involved was the targeting of a foreign national under § 702, through which Mohamud’s email communications were incidentally collected. Confined to the particular facts of this case, we hold that the § 702 acquisition of Mohamud’s email communications did not violate the Fourth Amendment.”
The court’s decision in Mohamud has been criticized by some legal scholars and privacy advocates who argue that the government’s use of Section 702 surveillance is overly broad and lacks sufficient safeguards to protect the privacy rights of US persons. However, the court’s decision in Mohamud reflects the current state of the law regarding the use of evidence obtained through Section 702 surveillance in criminal cases.
Beyond all doubt, the use of Section 702 surveillance in criminal cases continues to be a controversial and complex issue, and legal challenges to its use are likely to continue.
In summary, evidence obtained through Section 702 surveillance may be used in criminal court cases in the United States if it is relevant and not subject to minimization. However, the use of such evidence has been the subject of constitutional challenges and remains a complex and controversial issue.
In summary, the Foreign Intelligence Surveillance Court is a specialized federal court established under the Foreign Intelligence Surveillance Act. Its purpose is to provide oversight of the government’s surveillance activities related to national security investigations. While targets of FISA court activities may not always be aware of what is going on, they may be able to intervene in certain circumstances. And so far, in one very limited case, its use was not found to be a violation of the Fourth Amendment. But if the facts were different, then the outcome might very well have been different.
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