This is FISA Calling to Let You Know You May Be Eligible for A

UIC

REVIEW OF INTELLECTUAL PROPERTY LAW

THIS IS FISA CALLING TO LET YOU KNOW YOU MAY BE ELIGIBLE FOR A

MOTION TO SUPPRESS: NEW NOTICE REQUIREMENT FROM

UNITED STATES V. MOALIN

JENNIFER E. ARMSTRONG

ABSTRACT

The September 11th terrorist attacks claimed the lives of nearly 3,000 people.

Immediately following the attacks, Americans rose to the challenge and willingly

ceded some of their civil liberties to in order to strengthen national security.

However, after Edward Snowden disclosed the National Security Agency’s rampant

bulk collection of metadata from U.S. citizens in 2013, concern about privacy

returned to the forefront of conversation. The government contended that this was a

necessary program that yielded positive results. However, the only case in which the

bulk collection of metadata had successfully thwarted a terrorist plot was in the case

of Moalin, a Somali man living in Southern California who sent money to al-Shabaab.

To much surprise, the Ninth Circuit ruled that the bulk collection of metadata

exceeded the scope of Congress’ authorization under FISA. The Ninth Circuit held

that the government is required to notify defendants that electronic surveillance

occurred, and that the government intends to use the obtained information at trial,

allowing defendants to file a motion challenging its admission. Despite creating this

test, the Ninth Circuit refrained from applying it to Moalin’s case. It remains to be

seen if this decision is emblematic of the turning tides in privacy law in the twenty

years following the September 11th attacks, or if this decision remains the outlier

and the one success story of the government’s bulk metadata collection program.

Cite as Jennifer Armstrong, This is FISA Calling to Let You Know You May Be

Eligible for A Motion to Suppress: New Notice Requirement from United States v.

Moalin, 20 UIC REV. INTELL. PROP. L. 166 (2021).

THIS IS FISA CALLING TO LET YOU KNOW YOU MAY BE ELIGIBLE FOR A

MOTION TO SUPPRESS: NEW NOTICE REQUIREMENT FROM

UNITED STATES V. MOALIN

JENNIFER E. ARMSTRONG

I. INTRODUCTION ............................................................................................................ 166

II. BACKGROUND ............................................................................................................. 168

A. Fourth Amendment Jurisprudence Regarding Notice ....................................... 168

B. The Evolution of FISA Law from 1978 to Present ............................................. 169

1. History of FISA ................................................................................................. 169

2. Expansion of FISA Capabilities ....................................................................... 170

3. Relevant FISA Statutes .................................................................................... 170

C. How the Fourth Amendment is Currently Applied in FISA Cases ................... 171

III. THE CASE .................................................................................................................. 172

IV. ANALYSIS .................................................................................................................. 175

A. New Notice Requirement Under United States v. Moalin ................................. 175

1. How the New Notice Requirement Arose ........................................................ 175

2. The New Notice Requirement .......................................................................... 176

B. The Impact of the New Notice Requirement on Future Cases .......................... 178

1. Will the Decision Be Accepted? ........................................................................ 178

2. Moalin Follows the Current Trend of Privacy Concerns with FISA ............. 178

3. Issues with the Ninth Circuit’s Interpretation of Moalin .............................. 180

V. CONCLUSION............................................................................................................... 181

[20:166 2021] UIC Review of Intellectual Property Law 166

THIS IS FISA CALLING TO LET YOU KNOW YOU MAY BE ELIGIBLE FOR A

MOTION TO SUPPRESS: NEW NOTICE REQUIREMENT FROM

UNITED STATES V. MOALIN

JENNIFER E. ARMSTRONG



I. INTRODUCTION

On September 11th, 2001, the United States suffered the worst terrorist attack

it had ever experienced on U.S. soil.

Nearly 3,000 people lost their lives in this

coordinated attack that fundamentally changed the way Americans view national

security.

In the aftermath of September 11th, the United States Government had to

prove to Americans that they would be safe in their homeland and that the government

would not fail them again.

In furtherance of this objective, Congress passed the USA PATRIOT Act,

which expanded many capabilities of the United States Government, including the

Foreign Intelligence Surveillance Court (“FISA court”).

Congress originally created

the FISA court in 1978 in order to create a system where the executive branch could

obtain authorization for surveillance on foreign actors.

The FISA court operates in a

necessary layer of secrecy that often does not allow for non-governmental lawyers to

be party to the hearings.

This secrecy is a necessary component of building cases

against foreign threats to the United States, principally terrorists.

Twelve years after the September 11th terrorist attacks, The Guardian

published a series of articles

about the National Security Agency’s (“NSA”) practice of

bulk collection of metadata with documents supplied by former NSA employee, Edward



International Relations, Boston University (2018). I would like to thank my editors and my family for

all of their support and guidance. No one accomplishes anything alone.

Steven Brill, Is America Any Safer?, THE ATLANTIC (Sept. 2016),

https://www.theatlantic.com/magazine/archive/2016/09/are-we-any-safer/492761/.

Id.

Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and

Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 (codified as

amended in scattered sections of U.S.C.).

REBECCA WOODS ET AL., DATA SECURITY AND PRIVACY LAW § 6.46 (2020).

Id.

Id. (The primary purpose of the FISA court is to review warrant applications from the Attorney

General regarding the electronic surveillance for foreign intelligence purposes.).

Privacy and Civil Liberties Oversight Board, Rep. on the Tel. Records Program Conducted

Under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence

Surveillance Court 13 (Jan. 23, 2014),

https://www.judiciary.senate.gov/imo/media/doc/PCLOBReport.pdf [hereinafter Privacy and Civil

Liberties Oversight Board].

Glenn Greenwald, NSA Collecting Phone Records of Millions of Verizon Customers Daily, THE

GUARDIAN (June 6, 2013), https://www.theguardian.com/world/2013/jun/06/nsa-phone-records-

verizon-court-order. (This article was the first in a series of articles run by The Guardian based off of

information given to them by Edward Snowden.).

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Motion to Suppress: New Notice Requirement from United States v. Moalin 167

Snowden.

Metadata is information, “includ[ing] comprehensive communications

routing information, including . . . identifying information (e.g., originating and

terminating telephone number, communications device identifier, etc.) trunk

identifier, and time and duration of call.”

This release sparked a series of

controversies over the legality of the NSA’s metadata collection program and other

mass data collection programs. On September 2, 2020, the Ninth Circuit ruled in

United States v. Moalin that the NSA’s bulk collection of metadata exceeded the

authorization of Congress and violated section 1861 of the FISA Act.

While this decision is a significant step towards curtailing the government’s

ability to collect bulk metadata, it was not the most important part of the opinion. On

appeal, Moalin and his co-defendants challenged the metadata evidence under the

Fourth Amendment, arguing that they were entitled to receive notice of any additional

surveillance that they had been subjected to through a warrant authorized by FISA

Subchapter I.

The Ninth Circuit developed a new test for notice, stating that, “the

government is required only to inform the defendant that surveillance occurred and

that the government intends to use the information obtained or derived from it [in a

criminal prosecution].”

If the government does not feel comfortable disclosing the

information for national security reasons, the court can review the information

through ex parte communications or in camera.

Despite the Ninth Circuit creating

this new notice test, it did not apply it in Moalin because it found that the exclusion of

the metadata would not change the outcome of the case.

This notice requirement has never been applied to additional electronic

surveillance derived from a FISA warrant in a criminal prosecution because the

government and FISA court traditionally have given the “derived from” language a

narrow interpretation.

This new notice requirement may leave the door open for

other circuits to determine that the government must provide notice to the defendant

of any additional electronic surveillance derived from a FISA warrant, not just the

surveillance that the government intends to use in court.

This note argues that the new notice requirement established by the Ninth

Circuit in Moalin is necessary to protect the Fourth Amendment rights of United

States citizens who are being electronically surveilled by the United States

Mattathias Schwartz, The Whole Haystack: The N.S.A. Claims it Needs Access to All Our Phone

Records. But is That the Best Way to Catch a Terrorist?, THE NEW YORKER (Jan. 19, 2015),

https://www.newyorker.com/magazine/2015/01/26/whole-haystack.

In re Application of the FBI for an Order Requiring the Prod. of Tangible Things from

[Redacted] ("2006" Primary Order), No. BR 06-05, slip op. at 2 (F.I.S.C. May 24, 2006), 2,

https://www.dni.gov/files/documents/section/pub_May%2024%202006%20Order%20from%20FISC.pd

973 F.3d 977, 996 (9th Cir. 2020) (The Ninth Circuit found that the bulk collection of metadata

violated 50 U.S.C. § 1861. This section dictates the requirements the Attorney General must prove in

its application in order to obtain a warrant for electronic surveillance from the FISA court.).

Id. at 997-998. (FISA Subchapter I is comprised of 50 U.S.C. § 1801 – 1812.).

Id. at 1001.

Id.

Charlie Savage, Door May Open for Challenge to Secret Wiretaps, N.Y. TIMES (Oct. 16, 2013),

https://www.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-challenge-to-secret-

wiretaps.html.

United States v. Moalin, 973 F.3d 977, 1001 (9th Cir. 2020).

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Government. Part II provides an evolution of FISA law and its contention with the

Fourth Amendment’s notice requirement. Part III provides greater detail and

background on United States v. Moalin.

Part IV analyzes the untested notice

requirement and its implications on the FISA court and other circuits. Part V

concludes that the notice requirement is necessary to ensure United States citizens are

able to exercise their Fourth Amendment rights after being electronically surveilled

by the United States Government.

II. BACKGROUND

In order to analyze Fourth Amendment challenges in FISA related cases, it is

important to first examine how the Fourth Amendment’s notice requirement operates

in ordinary jurisprudence. Next, it is important to discuss the evolution of FISA law.

After examining both of these topics, this section will explore how the Fourth

Amendment applies in FISA related cases.

A. Fourth Amendment Jurisprudence Regarding Notice

The Fourth Amendment protects against unlawful searches and seizures.

The Fourth Amendment requires that the person be notified that they are subject to a

search unless there are exigent circumstances.

When the Fourth Amendment was

drafted, notice was easy to give and receive because the individual subject to the search

would be able to physically observe officers of the government looking through their

belongings.

However, when electronic surveillance of any kind is involved, it can work

against the goal of the surveillance and prematurely alert the target of the on-going

investigation. Courts have found that there is no requirement of advance notice in

cases such as wiretapping, where the notice would encourage the target to discontinue

use of that method of communication.

Under these circumstances, there needs to be

a constitutionally adequate substitute for advance notice, such as notification upon

completion of the operation.

Id.

U.S. CONST. amend. IV.

Berger v. State of N.Y., 388 U.S. 41, 60 (1967).

Orin Kerr, Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement for

Surveillance Practices?, LAWFARE (Sept. 9, 2020, 7:01 AM), https://www.lawfareblog.com/did-ninth-

circuit-create-new-fourth-amendment-notice-requirement-surveillance-practices.

Katz v. United States, 389 U.S. 347, 355 n.16 (1967); Dalia v. United States, 441 U.S. 238, 248

(1979).

United States v. Donovan 429 U.S. 413, 429 n.19 (1977).

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Motion to Suppress: New Notice Requirement from United States v. Moalin 169

B. The Evolution of FISA Law from 1978 to Present

1. History of FISA

When the FISA court was created in 1978, it was part of a major restructuring

policy that completely changed how the United States conducted electronic

surveillance for foreign intelligence.

Before FISA, wiretaps were authorized for

national security under the President’s Article II powers of the Constitution.

The

original FISA court created a procedure for the Attorney General to obtain warrants

that authorized the use of electronic surveillance for the purpose of foreign

intelligence.

A FISA warrant differs from a regular warrant in that in a FISA warrant, the

government must show probable cause that the target of the surveillance is a “foreign

power”

or an “agent of a foreign power”

and that there is a connection to the location

that is being surveilled.

FISA was never meant to survive constitutional standards

required under criminal law because it was created with the purpose of easing

counterintelligence operations on foreign subjects.

Privacy and Civil Liberties Oversight Board, supra note 7, at 13.

Id. (U.S. CONST. art II, § 2, cl. 2. authorizes the President to control foreign relations).

Id.

50 U.S.C. § 1801(a) defines a “foreign power” as:

a foreign government . . . , a faction of a foreign nation . . . , an entity that is openly

acknowledge by a foreign government(s) to be directed and controlled by such

foreign government(s), a group engaged in international terrorism or activities in

preparation thereof, a foreign-based political organization . . . , an entity that is

directed and controlled by a foreign government(s), or an entity not substantially

composed of United States persons that is engaged in the international

proliferation of weapons of mass destruction.

50 U.S.C. § 1801(b) defines an “agent of a foreign power” as:

any person other than a United States person, who acts in the United States as an

officer or employee of a foreign power . . . , acts for or on behalf of a foreign power

which engages in clandestine intelligence activities in the United States contrary

to the interest of the United States . . . or when such person knowingly aids or abets

any person in the conduct of such activities or knowingly conspires with any person

to engage in such activities, engages in international terrorism or activities in

preparation therefore, engages in the international proliferation of weapons of mass

destruction, or activities in preparation thereof, or engages in the proliferation of

weapons of mass destruction, or activities therfor, for or on behalf of a foreign

power, or knowingly aids or abets any person in the conduct of such proliferation or

activities therfor, or knowingly conspires with any person to engage in such

proliferation or activities in preparation therefor.

3 DAVID S. KRIS & J. DOUGLAS WILSON, NATIONAL SECURITY INVESTIGATIONS AND

PROSECUTIONS § 11:2–5 (Thomson Reuters, 2019); 50 U.S.C. § 1804(a)(3)(A); & 50 U.S.C.

§ 1804(a)(3)(B). (A regular warrant must be based on probable cause and particularly describing the

person, place, or things to be searched. A warrant must be submitted under oath and by a neutral and

detached official.).

KRIS & WILSON, supra note 29, § 11.12.

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2. Expansion of FISA Capabilities

In the aftermath of September 11th, President Bush authorized a program that

came to be known as the President’s Surveillance Program, which was reauthorized

every thirty to forty-five days.

This program authorized the NSA to collect bulk

metadata on certain international communications.

This program was authorized as

an emergency response to the September 11th terrorist attacks.

In 2004, the

government asked the FISA court to expand its purview to include the President’s

Surveillance Program.

The bulk collection of metadata was an authorized

government practice under Section 215 of the USA PATRIOT Act. Section 215

authorized the government to collect, “‘books, records, papers, documents, and other

items’ that are ‘relevant’ to ‘an authorized investigation’”.

However, Section 215 of

the USA PATRIOT Act has since ended, following the recommendation of the Privacy

and Civil Liberties Oversight Board.

In 2008, Congress passed the FISA Amendments Act (“FAA”) which allows the

government to conduct electronic surveillance of people believed to be outside of the

United States without using the procedures required by FISA Subchapter I.

Prior to

the passage of the FAA, President Reagan issued Executive Order 12333, which

prohibited surveillance of United States persons; however, following the passage of the

FAA, Executive Order 12333 continues to allow the incidental collection of metadata

from United States persons.

3. Relevant FISA Statutes

The meat of FISA Subchapter I comes from section 1802, which outlines the

ability of the Attorney General to utilize electronic surveillance without a court order.

Section 1802 explains that the Attorney General may use electronic surveillance

without a court order for up to one year when the electronic surveillance is solely

directed at communications used exclusively among foreign powers and there is no

substantial likelihood that any United States person is a party.

The exclusion of

United States persons is a crucial distinction and part of what allows the FISA court

to operate in the manner that it does.

Privacy and Civil Liberties Oversight Board, supra note 7, at 9.

Id.

Id. at 37.

Id. at 13.

Schwartz, supra note 9.

Privacy and Civil Liberties Oversight Board, supra note 7, at 168.

United States v. Moalin, 973 F.3d 977, 998 (9th Cir. 2020) (If the government wants to use

information that was gathered under the FAA in a criminal prosecution, they have the same notice

requirements as under FISA Subchapter I. However, with the Snowden leaks, it came out that the

government was using information gathered under the FAA for criminal prosecutions without notice.

At this time, the Department of Justice contemplated adding a notice requirement to the FISA Act

but decided not to.). See Savage, supra note 16.

Moalin, 973 F.3d at 999; Exec. Ord. No. 12,333; See KRIS & WILSON, supra note 30, § 17:19.

50 U.S.C. § 1802.

50 U.S.C. § 1802(a)(1)(A)(i); 50 U.S.C. § 1802(a)(1)(B).

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Motion to Suppress: New Notice Requirement from United States v. Moalin 171

While the Moalin

court created a new notice requirement for FISA, there is

already an existing notice requirement. Section 1806 states that:

Whenever the Government intends to enter into evidence or otherwise

use or disclose in any trial, hearing, or other proceeding in or before

any court, department, officer, agency, regulatory body, or other

authority of the United States, against an aggrieved person

, any

information obtained or derived from an electronic surveillance of that

aggrieved person pursuant to the authority of this subchapter, the

Government shall, prior to the trial, hearing, or other proceeding or at

a reasonable time prior to an effort to so disclose or so use that

information or submit it in evidence, notify the aggrieved person and

the court or other authority in which the information is to be disclosed

or used that the Government intends to so disclose or so use such

information.

This notice requirement, unlike the one applied in Moalin

, is only necessary

if there was a warrantless collection of information.

Furthermore, section 1806(e) includes a remedy for aggrieved persons who

wish to challenge the entry of information. Under section 1806(e), the defendant has

the ability to file a motion to suppress only if, “(1) the information was unlawfully

acquired; or (2) the surveillance was not made in conformity with an order of

authorization or approval.”

The motion also, “shall be made before the trial, hearing,

or other proceeding unless there was no opportunity to make such a motion or the

person was not aware of the grounds of the motion.”

While the motion to suppress is

an available remedy, there are strict restrictions that can make its use difficult.

C. How the Fourth Amendment is Currently Applied in FISA Cases

United States v. Cavanagh

ruled that while the FISA court gets to use a less

stringent standard for electronic surveillance, it still needs to comply with the Fourth

Amendment.

While the Cavanagh court did not discuss whether there was a notice

requirement under the Fourth Amendment related to FISA, the court did confirm that

the FISA warrant is only authorized for foreign intelligence.

The Moalin court used

this confirmation to determine that if the FISA court only has purview over foreign

Moalin, 973 F.3d at 1001.

50 U.S.C. § 1801(k) (“An ‘aggrieved person’ means a person who is the target of an electronic

surveillance or any other person whose communications or activities were subject to electronic

surveillance”).

50 U.S.C. § 1806(c).

Moalin, 973 F.3d at 977.

Savage, supra note 16.

50 U.S.C. § 1806(e)(1)-(2).

Id.

United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir. 1987).

Id.

Id. at 788.

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intelligence, then it cannot use the information gleaned from electronic surveillance

for criminal prosecution.

The court then determined that this leaves the Fourth

Amendment notice requirement intact and requires the government to provide notice

to criminal defendants when their information has been obtained through electronic

surveillance so that the defendant has adequate time to file a motion to suppress.

In United States v. Mohamud,

the court discussed the notice requirement

under the Fourth Amendment with regard to the FISA court’s electronic surveillance.

In this case, the defendant was notified of the electronic surveillance after the verdict

when the government filed a supplemental notice.

The government used electronic

surveillance to look at Mohamud’s emails, which became the basis for the FISA

warrant.

The defendant argued that the late admission of notice mandated

suppression of the evidence.

The court found that suppression of the evidence was

not warranted in this situation because the defendant was not prejudiced by the late

notice as the government never actually used the emails in court.

The court refused

to evaluate the possible Fourth Amendment violation of the emails without a showing

that the defendant suffered an injury as a result of the omission.

This case is a clear

example of how narrow the notice requirement is interpreted and how difficult it can

be to satisfy under the FISA requirements.

III. THE CASE

United States v. Moalin

concerns the appeal of four defendants who are

members of the Somali diaspora that were convicted of sending $10,900 USD to the

foreign terrorist organization (“FTO”), al-Shabaab.

Somalia has been in a civil war

since 1991 after the military dictator, Siad Barre, was ousted.

An interim government

was set up in 2004, but faced a great deal of distrust and opposition.

To protect

themselves against the interim government and the Ethiopians, a number of

United States v. Moalin, 973 F.3d 977, 1000 (9th Cir. 2020).

Id.

843 F. 3d 420, 431 (9th Cir. 2016).

Id.

Id. at 438.

Id. at 436.

United States v. Mohamud, 843 F.3d 420, 437-438 (9th Cir. 2016).

Id. at 438 n.21. See United States v. Posey, 864 F.2d 1487, 1491 (9th Cir. 1989).

United States v. Moalin, 973 F.3d 977, 1000 (9th Cir.2020).

Id. at 984-985.

Id. at 985 (In addition to the civil war, there has been widespread famine, drought, and violence

where tens of thousands of people have died and hundreds of thousands have been displaced. Around

three million Somalis fled, creating the Somali diaspora).

Moalin, 973 F.3d at 985.

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insurgency groups have emerged, one of which is al-Shabaab.

The United States

designated al-Shabaab as a FTO in 2008.

At the time of this appeal, defendants Basaaly Saeed Moalin and Issa Doreh

were citizens of the United States, defendant Mohamed Mohamed Mohamud had

refugee status in the United States, and defendant Ahmed Nasir Taalil Mohamud had

a visa.

All of the defendants immigrated to the United States a number of years ago

from Somalia and lived in Southern California.

All of the defendants were charged

with conspiracy to provide material support to terrorists,

conspiracy to provide

material support to a FTO

, and conspiracy

to launder monetary instruments.

Defendants Moalin, M. Mohamud and Doreh were charged with added count

providing material support to an FTO.

Defendant Moalin received an additional

charge

of conspiracy to provide material support to terrorists.

The government had obtained a FISA warrant under Subchapter I to have

access to Moalin’s calls.

During the time of surveillance, Moalin was calling a man

who went by the name of “Shikhalow,” aka “Ayrow,” that the government believed was

a key leader in al-Shabaab.

For over a year, Moalin and the other defendants kept in

contact with Shikhalow and sent money through their local hawala

to Shikhalow.

Defendants argued that Shikhalow was not Ayrow and that the money was going back

to Somalia for humanitarian purposes.

Id. (al-Shabaab is known for using improvised explosive devices and suicide bombings.); see

also Press Release, Department of State, Amendments to the Terrorist Designations of al-Shabaab

(July 19, 2018) (on file with author), https://www.state.gov/amendments-to-the-terrorist-designations-

of-al-shabaab/. Pertinent language of the press release states the following:

Since al-Shabaab’s initial 2008 FTO designation, it has killed numerous civilians

throughout East Africa. Al Shabaab’s attacks included the October 2017 attack in

Mogadishu where the group detonated a truck bomb that killed over 500 people,

the September 2013 Westgate Mall attack in Kenya that killed more than 70 people,

and the July 2010 suicide bombings in Kampala, Uganda that took place during the

World Cup and killed 76 people, including one U.S. citizen.

United States v. Moalin, 973 F.3d 977, 985 (9th Cir. 2020).

Id. at 985 n. 2.

Id. at 985.

18 U.S.C. § 2339A(a).

18 U.S.C. § 2339B(a)(1).

18 U.S.C. § 1956(a)(2)(A) & (h).

United States v. Moalin, 973 F.3d 977, 985-986 (9th Cir. 2020).

18 U.S.C. § 2339B(a)(1)-(2).

Moalin, 973 F.3d at 985-986.

18 U.S.C. § 2339A(a).

Moalin, 973 F.3d at 986.

Id.

Schwartz, supra note 9 (A “hawala” is an informal network of Islamic money-transfer agents.

The hawala that Moalin and the other defendants were going to was called Shidaal Express, where

Issa Doreh worked.); United States v. Moalin, 973 F.3d 977, 985-986 (9th Cir. 2020) (The hawala is

necessary to send money to Somalia because Somalia has no formal banking system and operates

mainly through the use of these hawalas.).

United States v. Moalin, 973 F.3d 977, 986 (9th Cir. 2020).

Id. at 987.

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Before the trial began, Moalin filed a motion to suppress all electronic

surveillance made under FISA and the fruits of that surveillance because Moalin

argued that the information obtained under FISA had been obtained illegally, violating

the Fourth Amendment.

The district court denied the motion, and further denied

Moalin’s counsel access to the FISA documents.

Two days before the trial began, the

government introduced an email from a redacted Federal Bureau of Investigation

(“FBI”) linguist that suggested there were other agencies monitoring Moalin.

After

the trial had commenced, the defendant learned about the NSA’s bulk metadata

collection through the Snowden disclosures.

Moalin further learned that public

officials had used the bulk metadata collection program to open investigations into

Moalin personally.

The defendants then filed a motion for a new trial, which was

denied.

In this appeal, the Ninth Circuit found that the bulk collection of metadata by

the NSA exceeded the scope of the authorization Congress granted FISA.

The Ninth

Circuit also ruled that the government is required to notify the defendant that

electronic surveillance occurred and the government intends to use information

obtained or derived from it at trial.

This case created a new test for the Fourth

Amendment notice requirement under the FISA act and will likely change the way

FISA cases are heard. However, the Ninth Circuit did not apply this test to Moalin’s

case, finding that the defendants had not been prejudiced by the lack of notice.

Id.

Id. (The email said: “We just heard from another agency that Ayrow tried to make a call to

Basaaly [Moalin] today, but the call didn’t go through. If you see anything today, can you give us a

shout? We’re extremely interested in getting real-time info (location/new #’s) on Ayrow.”).

United States v. Moalin, 973 F.3d 977, 987 (9th Cir. 2020) (The government’s disclosure of the

bulk metadata used Moalin as an example that bulk collection helped stop terrorist attacks);

Schwartz, supra note 9.

Moalin, 973 F.3d at 987 (“These statements reported that the FBI had previously closed an

investigation focused on Moalin without bringing charges, then reopened that investigation based on

information obtained from the metadata program.”); Schwartz, supra note 9 (“The government has

not shown any instance besides Moalin’s in which the law’s metadata provision has directly led to a

conviction in a terrorism case.”).

Moalin, 973 F.3d at 988.

Id. at 996.

Id. at 1001.

Id.

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IV. ANALYSIS

A. New Notice Requirement Under United States v. Moalin

1. How the New Notice Requirement Arose

On its surface, the new notice requirement in United States v. Moalin

can be

difficult to distinguish from that already existing in FISA subchapter I.

FISA

subchapter I requires that the government shall notify the aggrieved party and the

district court prior to the start of trial of any information that it intends to use in court

and disclose any information obtained or derived from electronic surveillance

conducted under FISA authorization.

In this case, the government failed to notify defendant Moalin that it had

collected his metadata through the NSA’s bulk metadata collection program.

However, when the government submitted a redacted email from the FBI to the

defendants two days before the commencement of trial, it became clear that the FISA

authorized surveillance was being used by other agencies for other purposes.

This is

an issue because depending on the type of electronic surveillance, when it occurred,

and how it was authorized, it is possible that the FBI surveillance was used as evidence

in the original FISA wiretap applications.

The use of electronic surveillance obtained

under a FISA warrant as evidence in domestic criminal proceedings represents a huge

problem for agencies who perform both foreign intelligence surveillance and

participate primarily in domestic law enforcement, where there is supposed to be a sort

of ‘Chinese wall’

between the two.

This issue was further exposed by the Snowden disclosures. Edward Snowden

explained that the government was collecting bulk metadata through FISA

authorization and then turning around and using that same metadata in criminal

prosecutions without notifying the defendants of the surveillance.

This alerted the

defendants in this case that their metadata was likely being used for additional

surveillance, which is when they went to the Ninth Circuit to request the additional

surveillance that was not available during their first trial.

The defendants argued

973 F.3d 977, 1001 (9th Cir. 2020).

50 U.S.C. § 1806(c).

Id. See also United States v. Moalin, 973 F.3d 977, 998 (9th Cir. 2020) (“[T]he government

notified them and the district court that it intended to ‘use or disclose’ in ‘proceedings in this case

information obtained or derived from electronic surveillance conducted pursuant to the authority of

[FISA].’”) (citing 50 U.S.C. § 1806(c)).

Moalin, 973 F.3d at 998.

Id. at 987.

Id.

Ethical Wall, BLACK’S LAW DICTIONARY (11th ed. 2019) (A Chinese Wall, also called an Ethical

Wall is, “a screening mechanism maintained by an organization . . . to protect client confidences from

improper disclosure to lawyers or staff who are not involved in a particular representation.”).

See Schwartz, supra note 9.

Moalin, 973 F.3d at 998 (9th Cir. 2020). See Privacy and Civil Liberties Oversight Board, supra

note 7, at 1.

Moalin, 973 F.3d at 998.

[20:166 2021] UIC Review of Intellectual Property Law 176

that they had a Fourth Amendment

100

right to be notified of the additional

surveillance, other than the surveillance authorized under FISA subchapter I because

notice is a critical part of the Fourth Amendment.

101

The defendant’s Fourth Amendment argument seems like the logical approach

to this situation because in any other criminal prosecution, the government would be

required to give the defendant notice if a search had occurred.

102

However, in one of

the only other instances where the Ninth Circuit decided a Fourth Amendment case

involving FISA, the Ninth Circuit held that while the Fourth Amendment is not

directly applied, “a [d]ifferent standard[] [of probable cause] may be compatible with

the Fourth Amendment if [it is] reasonable both in relation to the legitimate need of

Government for intelligence information and the protected rights of our citizens.”

103

2. The New Notice Requirement

The Ninth Circuit agreed with the defendants in part, stating that, “the

government is required only to inform the defendant that the surveillance occurred

and that the government intends to use information obtained or derived from it.”

104

This creates a whole new area of notice where the government will now be required

not only to give notice of information gathered by the FISA authorized warrant that

they wish to use in court, but also any other information derived from the original

surveillance that they plan to use as well.

105

Traditionally under the Fourth Amendment, if the government fails to notify

the defendant that a search has occurred, the defendant would be able to file a motion

to suppress in order to keep the unlawfully gathered evidence out of trial.

106

However,

under FISA, a motion to suppress the evidence of electronic surveillance is only

available if the evidence was “unlawfully acquired” or the evidence was not “in

conformity with the authorization or approval.”

107

This section is essentially useless

100

U.S. CONST. amend. IV. The Fourth Amendments states the following:

The right of the people to be secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall not be violated, and no

[w]arrants shall issue, but upon probable cause, supported by Oath or affirmation,

and particularly describing the place to be searched, and the persons or things to

be seized.

101

Moalin, 973 F.3d at 1000.

102

Berger v. State of N.Y., 388 U.S. 41, 60 (1967); Moalin, 973 F.3d at 999; Katz v. United States,

389 U.S. 347, 355 (1967).

103

United States v. Cavanagh, 807 F.2d 787, 790 (9th Cir. 2020).

104

Moalin, 973 F.3d at 1001 (emphasis added).

105

Id.; see Kerr, supra note 21. In opinion about the notice rule, Kerr states:

This notice rule seems pretty different. This is a notice rule that is all about making

the exclusionary rule meaningful. You don’t get notice unless you are criminally

charged, and the notice you get is designed to alert you that you might have a

plausible motion to suppress that you should look into and consider filing.

106

Moalin, 973 F.3d at 1000. See Berger, 388 U.S. at 52-53.

107

50 U.S.C. § 1806(e)(1)-(2). The pertinent language of the statutory provision states:

[20:166 2021] This is FISA Calling to Let You Know You May Be Eligible for A

Motion to Suppress: New Notice Requirement from United States v. Moalin 177

because often times, there is virtually no way for a defendant or defendant’s attorney

to gain access to the original FISA court issued warrant to ascertain whether it was

unlawfully acquired or made in conformity with the warrant’s authorization.

108

Furthermore, prior to the new notice requirement from United States v. Moalin

109

, the

FISA court and the government read the “derived from”

110

requirement narrowly.

111

The Ninth Circuit in Moalin essentially widened this interpretation, making it a

requirement that the government notify defendants even when the information they

are using in court is merely derived from information authorized under a FISA

warrant.

112

After the government has given the defendant notice that the surveillance and

any information derived from it will be used in court, the Ninth Circuit allows the

defendant to file a motion challenging the evidence and its admission into court.

113

However, there is no telling how this new notice requirement will work in reality, as

the Ninth Circuit refused to apply the test to Moalin’s case, finding that the lack of

notice did not prejudice the defendants.

114

Any person against whom evidence obtained or derived from an electronic

surveillance to which he is an aggrieved person is to be, or has been, introduced or

otherwise used or disclosed in any trial . . . in or before any court . . . may move to

suppress the evidence obtained or derived from such electronic surveillance on the

grounds that (1) the information was unlawfully acquired; or (2) the surveillance

was not made in conformity with an order of authorization or approval. Such a

motion shall be made before the trial . . . unless there was no opportunity to make

such a motion or the person was not aware of the grounds of the motion.

108

Savage, supra note 16. Savage explains the what limited information regarding surveillance

evidence prosecutors are required to provide:

In national security cases involving orders issued under the Foreign Intelligence

Surveillance Act of 1978, or FISA, prosecutors alert defendants only that some

evidence derives from a FISA wiretap, but not the details like whether there had

just been one order or a chain of several. Only the judges see those details.

109

973 F.3d 977 (9th Cir. 2020).

110

50 U.S.C. § 1806(d).

111

Savage, supra note 16. Savage discusses an instance of where the narrow interpretation of the

“derived from” language was invoked:

The national security lawyers explained that [the failure to notify defendants that

the evidence in their case stemmed from wiretap conversation without a warrant]

was a misunderstanding, the officials said. Because the rules on wiretapping

warrants in foreign intelligence cases are different from the rules in ordinary

criminal investigations, they said, the division has long used a narrow

understanding of what ‘derived from’ means in terms of when it must disclose

specifics to defendants.

112

United States v. Moalin, 973 F.3d 977, 1001 (9th Cir. 2020).

113

Id.

114

Id.

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B. The Impact of the New Notice Requirement on Future Cases

1. Will the Decision Be Accepted?

While the Ninth Circuit refused to apply their own test in United States v.

Moalin,

115

it is unclear how the Ninth Circuit, or other courts for that matter, will

apply this new notice requirement in future cases, if they choose to use apply it at all.

Of the appellate circuits, the Ninth Circuit is known for putting out controversial

opinions that often times get reversed or vacated by the Supreme Court.

116

2. Moalin Follows the Current Trend of Privacy Concerns with FISA

Regardless of the fact that this case came out of the Ninth Circuit, it is sure to

have a lasting impact on Fourth Amendment jurisprudence as it follows the general

feeling of a nation nineteen years following September 11th. Following the Snowden

disclosures, the Privacy and Civil Liberties Oversight Board recommended that the

practice of bulk collection of metadata should be terminated

117

and the government

should implement heightened privacy protocols to reduce the effects of the bulk

collection of metadata collection.

118

115

Id.

116

Linda Que, Does the Ninth Circuit Have the Highest Reversal Rate in the Country?, N.Y. Times

(Nov. 26, 2018), https://www.nytimes.com/2018/11/26/us/politics/fact-check-trump-ninth-circuit.html.

The author discusses the reversal and vacating rate of Ninth Circuit decisions that are appealed to

the Supreme Court:

From 2006 to 2015, the Supreme Court heard 160 cases from the Ninth Circuit,

reversing 106 decisions and vacating 24 . . . [t]hat is a reversal or vacating rate of

about 81 percent, which is higher than the average reversal rate of nearly 73

percent . . . . In the 2016 term, the Ninth Circuit’s rate was nearly 88 percent, still

behind the 100 percent reversal or vacating rates of four other circuit courts.

117

Privacy and Civil Liberties Oversight Board, supra note 7, at 16-17. The Privacy and Civil

Liberties Oversight Board argued the following about the veracity of Section 215:

The Section 215 bulk telephone records program lacks a viable legal foundation

under Section 215, implicates constitutional concerns under the First and Fourth

Amendments, raises serious threated to privacy and civil liberties as a policy

matter, and has shown only limited value. As a result, the Board recommends that

the government end the program.

118

Id. at 17. The Privacy and Civil Liberties Oversight Board report further states that:

The recommend[ed] changes can be implemented without any need for

congressional or FISC authorization. Specifically the government should: (a) reduce

the retention period for the bulk telephone records program from five to three years;

(b) reduce the number of “hops” used in contact chaining from three to two; (c)

submit the NSA’s ‘reasonable articulable suspicion’ determinations to the FISC for

review after they have been approved by NSA and used to query the database; and

(d) require a ‘reasonable articulable suspicion’ determination before analysts may

[20:166 2021] This is FISA Calling to Let You Know You May Be Eligible for A

Motion to Suppress: New Notice Requirement from United States v. Moalin 179

Furthermore, the Attorney General and the FBI have been advocating for

reforms to the FISA court.

119

While the reforms will be focused on the FBI’s

investigation of elected officials, Attorney General Barr said that,

FISA is a critical tool to ensuring the safety and security of Americans,

particularly when it comes to fighting terrorism. However, the

American people must have confidence that the United States

Government will exercise its surveillance authorities in a manner that

protects the civil liberties of Americans, . . . and complies with the

Constitution and law of the United States.

120

In the many years following September 11th, Americans are looking to regain

some of the privacy rights they gave up in order to fight terrorism.

121

The Ninth

Circuit’s decision in United States v. Moalin is a huge step for privacy reform in the

realm of national security, not only for the addition of the notice requirement, but also

for holding that the bulk metadata collection program exceeded the scope of FISA.

122

submit queries to, or otherwise analyze, the ‘corporate store,’ which contains the

results of contact chaining queries to the full ‘collection store.

119

Press Release, Department of Justice, The Department of Justice and the Federal Bureau of

Investigation Announce Critical Reforms to Enhance Compliance, Oversight, and Accountability at

the FBI (Sept. 1, 2020) (On file with author), https://www.justice.gov/opa/pr/department-justice-and-

federal-bureau-investigation-announce-critical-reforms-enhance. FBI Director Christopher Wray

explained:

That’s why I immediately ordered more than 40 corrective actions, including

foundational FISA reforms, many of which went beyond those recommended by the

Inspector General. The FBI has been working diligently to implement these

corrective actions. The additional reforms announced today, which we worked on

closely with the Attorney General’s office, will build on the FBI’s efforts to bolster

its compliance program. FISA is an indispensable tool that the FBI uses to protect

our country from national security threats, and Americans can rest assured that

the FBI remains dedicated to continuously strengthening our FISA compliance

efforts and ensuring that our FISA authorities are exercised in a responsible

manner.

120

Id.

121

Shiva Manium, Americans Feel the Tensions Between Privacy and Security Concerns, PEW

RESEARCH CENTER (Feb. 19, 2016), https://www.pewresearch.org/fact-tank/2016/02/19/americans-

feel-the-tensions-between-privacy-and-security-concerns/ (“In an early 2015 online survey, 52% of

Americans described themselves as ‘very concerned’ or ‘somewhat concerned’ about government

surveillance of American’s data and electronic communications, compared with 46% who described

themselves as ‘not very concerned’ or ‘not at all concerned’ about the surveillance.”); see also Public

Opinion on Privacy, ELECTRONIC PRIVACY INFORMATION CENTER, https://epic.org/privacy/survey/

(last updated May 2020).

122

United States v. Moalin, 973 F.3d 977, 996 (9th Cir. 2020).

[20:166 2021] UIC Review of Intellectual Property Law 180

3. Issues with the Ninth Circuit’s Interpretation of Moalin

There are a few issues with the Ninth Circuit’s interpretation of Moalin that

could cause the decision to be interpreted in a way that the new notice requirement is

less restrictive than mentioned above. The first being the actual access the defendants

and the defendant’s attorneys will have to surveillance evidence. Even if the

government gives the defendant some sort of notice, the defendant will not necessarily

get direct access to the information that the government possesses.

123

The government

is able to keep this information from the defendants because of our country’s concern

for national security, especially with regard for foreign intelligence.

124

If the

government believes the information to have national security implications, it can

present the information to the court through an ex parte or in camera hearing,

excluding the defendants.

125

The second issue is that the government is only required to notify the

defendant of the surveillance if they plan to use the surveillance or any other

information derived from it.

126

This was part of the problem in United States v.

Mohamud,

127

where the defendant argued that he had a Fourth Amendment right to

view the emails the government alleged were part of his contact with a foreign

national.

128

The issue that the defendant encountered in this case is that the emails

were only used to get the FISA warrant in the first place and were never introduced at

trial; thus, the government was not required to notify the defendant of its use of

them.

129

The worry is that the government will continue to read their obligations

narrowly until the Supreme Court or a number of other circuits come to the same

conclusion that the Ninth Circuit did.

The third issue with this opinion is that the new notice requirement only

applies to notice, not disclosure.

130

This is a problem because there will not necessarily

be a difference in outcome if the defendant is notified that the surveillance occurred,

but is never given full access to that information. While the new notice requirement

allows for defendants to get more access to information surrounding their case, the

Ninth Circuit’s inability to extend notice to disclosure leaves a valuable gap in

information which leaves the established power imbalance in place.

131

There will

always be an imbalance in power in favor of the government in national security cases,

but the new notice requirement established by Moalin provides defendants some

evidentiary tools to help tip the scales.

Despite these issues, the Moalin opinion is sure to change the way defendants

interact with the FISA courts. This opinion has even more weight as it is championed

123

Id. at 1001.

124

Id.

125

Id. (“See, e.g., 50 U.S.C. § 1806(f), allowing in camera, ex parte review of the legality of

electronic surveillance under FISA Subchapter I if ‘the Attorney General files an affidavit under oath

that disclosure or an adversary hearing would harm the national security of the United States.’”).

126

Id.

127

843 F.3d 420, 438 (9th Cir. 2016).

128

Id.

129

Id. (This case is similar to Moalin in many ways. The defendant was also born in Somalia and

living in Southern California. The Ninth Circuit decided this case in 2016, just four years before the

same circuit decided Moalin.).

130

United States v. Moalin, 973 F.3d 977, 1001 (9th Cir. 2020).

131

Id.

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Motion to Suppress: New Notice Requirement from United States v. Moalin 181

as the only instance where bulk metadata collection was able to catch a terrorist.

132

While the practice of collecting bulk metadata has been heavily scrutinized, it is

important for the United States Government to make it seem like it was a worthwhile

program at the time of its use. Moalin exposes how the FISA courts and the NSA have

exploited defendants with any connection to foreign nationals whose actions can be

interpreted in any way as suspicious.

V. CONCLUSION

Nineteen years following the September 11th terrorist attacks, Americans are

looking to regain some of the privacy rights they exchanged for protection from foreign

adversaries. While the new notice requirement derived from United States v. Moalin

133

removes one brick from the wall the United States Government built against foreign

threats, it returns Fourth Amendment notice protections to those facing criminal

prosecution in the United States.

134

The Ninth Circuit in United States v. Moalin determined that the United

States Government must provide notice to defendants in criminal prosecutions when

the government intends to introduce evidence obtained or derived from electronic

surveillance authorized by the FISA Court.

135

This new notice requirement goes even

further to add that once the defendant is notified, they are able to file a motion to

challenge the legality of the introduction of the electronic surveillance.

136

This new notice requirement is a step in the right direction for defendants in

criminal prosecutions who have been electronically surveilled through a FISA

authorized warrant. However, there is great uncertainty in how this rule will be

applied, as it was not applied in Moalin,

137

or even if it will be applied at all.

138

There

is hope that this decision will be followed by other circuits because it reflects

Americans’ desire to move away from electronic surveillance, particularly the bulk

collection of telephony metadata.

139

The biggest obstacle affecting the utility of the new notice requirement is the

importance of protecting the ever expanding definition of national security and its

132

Schwartz, supra note 9.

133

973 F.3d 977, 1001 (9th Cir. 2020).

134

Id.

135

Id.

136

Id.

137

Id. at 1001. The court stated:

Based on our careful review of the classified record, we are satisfied that any lack

of notice, assuming such notice was required, did not prejudice the defendants. Our

review confirms that on the particular facts of this case, information as to whether

surveillance other than the metadata collection occurred would not have enabled

defendants to assert a successful Fourth Amendment claim. We therefore decline

to decide whether additional notice was required.

The Ninth Circuit refused to apply its own test or even walk through the analysis of why it chose not

to so this leaves the new notice requirement open to interpretation for other courts.

138

See Que, supra note 116.

139

See Privacy and Civil Liberties Oversight Board, supra note 7 at 16-17.

[20:166 2021] UIC Review of Intellectual Property Law 182

information, methods, and sources. The emphasis on national security in the United

States makes the information in the FISA court almost impossible to reach. This new

notice requirement will be a crucial step in the national conversation regarding the

contention between privacy, national security, and the Fourth Amendment. Other

circuits should adopt the test set forth in United States v. Moalin and work to restore

the rights guaranteed under the Fourth Amendment.