The Ninth Circuit handed down a new decision last week, United States v. Moalin, on the telephony metadata program that Edward Snowden revealed in 2013. The opinion, by Judge Marsha Berzon, has drawn some attention for its rulings on the lawfulness of the now-expired program. But there’s a part of the opinion that has been mostly overlooked that strikes me as much more important. Starting around page 36 of the opinion, the court appears to articulate a new Fourth Amendment notice requirement. It suggests that that defendants charged with crimes must be notified about surveillance practices that led to evidence that may be used in their case.
This holding was easy to miss if you weren’t looking for it, in part because the court doesn’t even apply its own test. Because the defendants learned of the surveillance anyway, the court rules, there was no prejudice and the court doesn’t need to reach whether the notice requirement applied to the facts of Moalin. But although this passage ends up having no bearing on this one case, it strikes me as potentially a pretty big deal going forward for the field of surveillance law.
I thought I would blog about the passage, and its potential significance, to alert practitioners and interested readers.
I. The Traditional Fourth Amendment Notice Requirement
Here’s the context. The Fourth Amendment traditionally has only one notice requirement. When the government executes a search warrant, the government has to give notice—even if delayed notice—that the warrant was executed. See, e.g., Dalia v. United States, 441 US 238, 247-48 (1979). Normally the search itself will give notice, as it’s hard to miss when the police knock down your door and take away your stuff. But even if the search itself doesn’t provide notice, the government has to give post-search notice that the search occurred. See id.
In the past, at least, this notice requirement has been understood to be pretty modest. For example, say the government gets a warrant to seize all of your e-mails held by your e-mail provider. The provider shares all of your e-mails, and the government looks through them. Do you get notice? No, the courts say. The Fourth Amendment notice requirement is satisfied by notice to the e-mail provider rather than to you. The search occurred there, and what matters is that notice was provided where the search occurred. See, e.g., United States v. Scully, 108 F. Supp.3d 59, 83-84 (E.D.N.Y. 2015).
II. The Ninth Circuit’s Notice Requirement
Enter the new Ninth Circuit decision. As I read it, it has a very different concept of the Fourth Amendment’s notice requirement.
In Moalin, the question was whether defendants had to be notified about a warrantless national security program involving collection of telephone metadata that had been collected about them as part of the investigation. I would have thought the answer is “no.” Most obviously, there was no search warrant about which to give notice. And beyond that, the program under then-existing precedent would have thought to not be a search at all.
The Ninth Circuit imagines a different kind of notice requirement, though. Instead of a notice requirement that a warrant was executed, flowing from the warrant itself, this is a notice requirement that appears to be triggered only if and when criminal charges are filed providing notice that evidence about a person was collected using a surveillance practice that may or may not be a search. In effect, it’s a notice to criminal defendants to consider filing a motion to suppress to challenge the investigation and vindicate any Fourth Amendment rights that may or may not have been at stake.
Here’s the passage from the opinion reproduced in full:
The Fourth Amendment requires that a person subject to a government search receive notice of the search, absent “exigent circumstances.” Berger v. State of New York, 388 U.S. 41, 60 (1967); see United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986). Courts have excused advance notice in the wiretapping context for a practical reason: if the subject of a wiretap were “told in advance that federal officers intended to record his conversations, the point of making such recordings would obviously [be] lost.” Katz, 389 U.S. at 355 n.16. In such circumstances, the government must provide a “constitutionally adequate substitute for advance notice.” Dalia v. United States, 441 U.S. 238, 248 (1979). Dalia explained that the Wiretap Act, which governs the use of electronic surveillance in criminal investigations, meets this requirement by instructing that “once the surveillance operation is completed the authorizing judge must cause notice to be served on those subjected to surveillance.” Id. (citing 18 U.S.C. § 2518(8)(d)); see United States v. Donovan, 429 U.S. 413, 429 n.19 (1977).
The government argues that Berger and Dalia are inapposite here because they dealt with ordinary criminal investigations, and the Fourth Amendment requirements are different in the foreign intelligence context. The government points to United States v. Cavanagh, which quoted United States v. United States District Court (Keith), 407 U.S. 297, 322–23 (1972), for the proposition that a different standard may be compatible with the Fourth Amendment in the intelligence-gathering context if it is “reasonable both in relation to the legitimate need of Government for intelligence information and the protected rights of our citizens.” 807 F.2d 787, 790 (9th Cir. 1987). Cavanagh held that “FISA satisfies the constraints the Fourth Amendment places on foreign intelligence surveillance conducted by the government.” Id.
For our purposes, the essential insight of Cavanagh is that even if the Fourth Amendment applies differently in the foreign intelligence context, it still applies, at least if U.S. persons are involved.
Cavanagh did not address the Fourth Amendment’s notice requirement, but the insight we glean from it bears on our analysis here: because the Fourth Amendment applies to foreign intelligence investigations, U.S. criminal defendants against whom the government uses evidence obtained or derived from foreign intelligence surveillance may have Fourth Amendment rights to protect. The principal remedy for a Fourth Amendment violation is the exclusionary rule: a criminal defendant may seek suppression of evidence obtained from an unlawful search or seizure, as well as of the “fruits” of that evidence—additional evidence to which it led. See Wong Sun, 371 U.S. at 488. But criminal defendants who have no knowledge that a potentially unconstitutional search has played a part in the government’s case against them have no opportunity to vindicate any Fourth Amendment-protected rights through suppression.
Notice is therefore a critical component of the Fourth Amendment in the context of a criminal prosecution. And although the Fourth Amendment may apply differently to foreign intelligence surveillance than to searches undertaken in ordinary criminal investigations, notice of a search plays the same role in the criminal proceeding: it allows the defendant to assess whether the surveillance complied with the Fourth Amendment’s requirements, whatever the parameters of those requirements are. Indeed, the Supreme Court has recognized that the notice provisions in FISA and the FAA serve precisely that function. See Amnesty Int’l USA, 568 U.S. at 421 & n.8.
At the same time, the need for secrecy inherent in foreign intelligence investigations justifies a more circumscribed notice requirement than in the ordinary criminal context. See Kris & Wilson, supra note 5, § 29:2 (discussing the need for secrecy). Whereas the Wiretap Act requires notice at the end of an investigation regardless of whether an indictment is filed, 18 U.S.C. § 2518(8)(d), the FISA and FAA notice provisions are more limited, requiring notice only when the “Government intends to enter into evidence or otherwise use or disclose in any trial . . . or other proceeding in or before any court . . . 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,” 50 U.S.C. § 1806(c); see id. §§ 1825(d) (physical search), 1845(c) (pen register and trap-and-trace surveillance); 1881e(a)(1) (FAA).16 According to the Senate Judiciary Committee Report accompanying FISA, Congress was aware that it was “depart[ing] from traditional Fourth Amendment criminal procedures,” but it concluded that the “need to preserve secrecy for sensitive counterintelligence sources and methods justifies elimination” of the “requirement of subsequent notice to the surveillance target . . . unless the fruits are to be used against him in legal proceedings.” S. Rep. No. 95-701, at 11–12 (1978) (emphasis added).
At a minimum, then, the Fourth Amendment requires notice to a criminal defendant when the prosecution intends to enter into evidence or otherwise use or disclose information obtained or derived from surveillance of that defendant conducted pursuant to the government’s foreign intelligence authorities. See Dalia, 441 U.S. at 248; Berger, 388 U.S. at 60.
This constitutional notice requirement applies to surveillance conducted under FISA and the FAA, which codify the requirement with respect to several types of surveillance. 50 U.S.C. §§ 1806(c), 1825(d), 1845(c), 1881e(a)(1). It also applies to surveillance conducted under other foreign intelligence authorities, including Executive Order 12,333 and the FAA’s predecessor programs. Indeed, the notice requirement is of particular importance with regard to these latter, non-statutory programs precisely because these programs lack the statutory protections included in FISA. Where statutory protections are lacking, the Fourth Amendment’s reasonableness requirement takes on importance as a limit on executive power, and notice is necessary so that criminal defendants may challenge surveillance as inconsistent with that requirement.
We emphasize that notice is distinct from disclosure. Given the need for secrecy in the foreign intelligence context, the government is required only to inform the defendant that surveillance occurred and that the government intends to use information obtained or derived from it. Knowledge of surveillance will enable the defendant to file a motion with the district court challenging its legality. If the government avers that disclosure of information relating to the surveillance would harm national security, then the court can review the materials bearing on its legality in camera and ex parte. 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”).
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