Nov 11

At Last – Some Positive Wiretapping News: DOJ Notifies Criminal Defendant of Intent to Use Evidence Obtained or Derived from FAA Wiretap

Edward Snowden’s and others’ disclosures regarding the existence, functions, and breadth of the National Security Agency’s (“NSA”) surveillance programs have fueled debate regarding mass surveillance, government secrecy, and the balance between national security and the right to privacy.  One related issue hits close to home for criminal practitioners:  whether and when the U.S. Department of Justice (“DOJ”) must disclose to defendants its intent to use evidence obtained or derived from the government’s acquisition of foreign intelligence pursuant to warrantless wiretaps?

Just one year ago, Solicitor General  Donald B. Verrilli, Jr. stood before the U.S. Supreme Court during oral argument in the case of Clapper v. Amnesty Int’l USA,  568 U.S. ____ (2013), and stated that the DOJ must provide notice of its intent to use any information obtained or derived from surveillance conducted pursuant to the FISA Amendment Act of 2008, H.R. 6304 (“FAA”), which specifically authorizes the government to wiretap Americans’ e-mails and phone calls without first obtaining a warrant so long as the surveillance is targeted at a foreigner abroad.  The Supreme Court, in concluding that Amnesty International did not have standing to challenge the constitutionality of the FAA, relied on the Solicitor General’s interpretation of the FAA, stating:

[O]ur holding today by no means insulates [the FAA] from judicial review ….  [I]f the Government intends to use or disclose information obtained or derived from a[n] [FAA] acquisition in judicial or administrative proceedings, it must provide advance notice of its intent, and the affected person may challenge the lawfulness of the acquisition.

Clapper, 568 U.S. ____, slip. op. at 25 (emphasis added) (citations omitted).

What subsequently happened in criminal prosecutions, however, varied from what the Solicitor General represented and the Supreme Court seemingly directed.  As reported by the New York Times over the summer, federal prosecutors in several cases refused to disclose whether the government had gathered information under the FAA.  In one case in the Southern District of Florida, the government was even ordered to disclose whether it had gathered information for the case under the FAA.  But rather than comply, the government instead moved for reconsideration.

It appears, however, that the DOJ has finally shifted its stance:  On Friday, October 25th, the government provided  Jamshid Muhtorov – who was charged in January 2012 with providing material support to a designated terrorist organization – with notice that it intends to “offer into evidence or otherwise use or disclose … information obtained or derived from” the acquisition of foreign intelligence information pursuant to the FAA.

Though an appropriate, albeit belated, step by the DOJ, many questions remain:  Are there other defendants with pending or closed cases that the DOJ failed to notify?  Will the DOJ, as they ought to, now provide such notice?  And will Mr. Muhtorov’s counsel be able to mount a successful  challenge to the constitutionality of the FAA?  Perhaps the NSA has already heard or seen the answers, but for the rest of us, only time will tell.

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