Case No.

18-1366

IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA

Plaintiff-Appellee,
v.

JAMSHID MUHTOROV

Defendant-Appellant.
________________________________________________________________

On Appeal from the United States District Court for the District of Colorado
The Honorable John L. Kane
District Court Criminal Action No. 1:12-CR-00033-JLK-1
________________________________________________________________

BRIEF OF THE BRENNAN CENTER FOR JUSTICE AS AMICUS CURIAE

IN SUPPORT OF DEFENDANT-APPELLANT AND REVERSAL

________________________________________________________________

Elizabeth Goitein Counsel for Amicus Curiae

THE BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
1140 Connecticut Ave. NW
Ste. 1150
Washington, DC 20036
(202) 249-7192
goiteine@brennan.law.nyu.edu
 CORPORATE DISCLOSURE STATEMENT

Pursuant to Rules 26.1 and 29(a)(4)(A) of the Federal Rules of Appellate

Procedure, amicus curiae states that it does not have a parent corporation and that

no publicly held corporation owns 10% or more of its stock.

ii
 TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ........................................................ ii

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES ................................................................................... iv

STATEMENT OF INTEREST ..................................................................................1

SUMMARY OF ARGUMENT .................................................................................2

ARGUMENT .............................................................................................................4

I. THE ADVENT OF MASS FOREIGN INTELLIGENCE SURVEILLANCE

POSES NOVEL AND HIGH-STAKES FOURTH AMENDMENT
QUESTIONS ...................................................................................................4

II. THE “INCIDENTAL OVERHEAR” DOCTRINE DOES NOT JUSITFY

WARRANTLESS SURVEILLANCE UNDER SECTION 702 ....................8

A. Americans Have a Reasonable Expectation of Privacy in Their

Communications with Foreigners .......................................................11

B. The “Incidental Overhear” Doctrine Is Not an Exception to the

Warrant Requirement ..........................................................................14

CONCLUSION ........................................................................................................24

CERTIFICATE OF COMPLIANCE .........................................................................1

CERTIFICATE OF DIGITAL SUBMISSION .........................................................2

CERTIFICATE OF SERVICE ..................................................................................3

iii
 TABLE OF AUTHORITIES

Cases

[REDACTED],
2011 WL 10945618 (FISA Ct. Oct. 3, 2011) (unpublished) .................................7

[REDACTED],
No. [REDACTED] (FISA Ct. Apr. 26, 2017) (unpublished),
http://bit.ly/d56exnj ..............................................................................................12

Carpenter v. United States,

138 S. Ct. 2206 (2018) .................................................................................. 12, 13

In re Applications for Search Warrants for Info. Associated with

Target Email Address, Nos. 12–MJ–8119–DJW & 12–MJ–8191–DJW,
2012 WL 4383917 (D. Kan. Sep. 21, 2012) (unpublished) .................................13

In re Directives [Redacted] Pursuant to Section 105B of FISA,

551 F.3d 1004, 1015 (FISA Ct. Rev. 2008) .....................................................9, 20

Jones v. United States,

357 U.S. 493 (1958) .............................................................................................10

Katz v. United States,

389 U.S. 347 (1967) ...................................................................................... 10, 15

Mincey v. Arizona,
437 U.S. 385 (1978) .............................................................................................10

Riley v. California,
573 U.S. 373 (2014) .............................................................................................10

Thompson v. Louisiana,
469 U.S. 17 (1984) ...............................................................................................10

United States v. Ali,

870 F. Supp. 2d 10, (D.D.C. 2012) ......................................................................13

iv
United States v. Al-Jayab,
No. 16-CR-00181 (N.D. Ill. June 28, 2018),
https://bit.ly/35f9pKT ......................................................................... 9, 12, 16, 23

United States v. Bin Laden,

126 F. Supp. 2d 264 (S.D.N.Y. 2000)..................................................................22

United States v. Brown,

484 F.2d 418 (5th Cir. 1973)................................................................................25

United States v. Buck,

548 F.2d 871 (9th Cir. 1977)................................................................................25

United States v. Butenko,

494 F.2d 593 (3d Cir. 1974) .................................................................................25

United States v. Donovan,

429 U.S. 413 (1977) .......................................................................... 15, 16, 19, 20

United States v. Figueroa,

757 F.2d 466 (2d Cir. 1985) .......................................................................... 21, 22

United States v. Hasbajrami,

No. 11-CR-623 (JG), 2016 WL 1029500 (E.D.N.Y. Mar. 8, 2016) ............ passim

United States v. Kahn,

415 U.S. 143 (1974) ..................................................................................... passim

United States v. Martin,

599 F.2d 880 (9th Cir. 1979)......................................................................... 21, 22

United States v. Mohamud,

843 F.3d 420 (9th Cir. Dec. 5, 2016) .................................................. 9, 12, 16, 23

United States v. Mohamud,

No. 3:10–CR–00475–KI–1, 2014 WL 2866749
(D. Or. June 24, 2014) (unpublished) ....................................................... 9, 20, 23

United States v. Muhtorov,

187 F. Supp. 3d 1240 (D. Colo. 2015) .............................................. 11, 12, 20, 23
v
United States v. Schwartz,
535 F.2d 160 (2d Cir. 1976).................................................................................21

United States v. Truong Dinh Hung,

629 F.2d 908 (4th Cir. 1980)................................................................................25

United States v. Verdugo-Urquidez,

494 U.S. 259 (1990) ...................................................................................... 17, 22

United States v. Warshak,

631 F.3d 266 (6th Cir. 2010)................................................................................13

Statutes

18 U.S.C. § 2516 ......................................................................................................15

18 U.S.C. § 2518(1)(b)(iv) .......................................................................................17

50 U.S.C. § 1801(a)&(b)............................................................................................4

50 U.S.C. § 1801(e) ...................................................................................................7

50 U.S.C. § 1801(f) ....................................................................................................5

50 U.S.C. § 1805(a) ...................................................................................................4

50 U.S.C. § 1881a ......................................................................................................7

FISA Amendments Act of 2008, Pub. L. No. 110-261,

122 Stat. 2435 (2008) at § 101(a)(2) ......................................................................7

Foreign Intelligence Surveillance Act of 1978, Pub. L. No. 95-511,

92 Stat. 1783...........................................................................................................4

Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351,
§§ 801–802, 82 Stat. 197 .....................................................................................15

Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat. 552 .............................7

vi
Other Authorities

Bob Sorokanich, Report: The NSA Is Recording Nearly Every Call Made in
Afghanistan, Gizmodo (May 23, 2014, 10:06 AM) ...............................................7

Elizabeth Goitein & Faiza Patel, What Went Wrong with the FISA Court,
Brennan Ctr. for Justice (2015) ..............................................................................5

Elizabeth Goitein, Another Bite Out of Katz: Foreign Intelligence Surveillance

and the Incidental Overhear Doctrine, 55 Am. Crim. L. Rev. 105 (2017) ...........2

Email Statistics Report, 2019-2023, Radicati Grp. (2019) ........................................6

Exec. Order No. 12,333, 3 C.F.R. § 200 (1981), reprinted as amended in

50 U.S.C. app. § 401 (2008) ..................................................................................5

Gov’t’s Unclassified Mem. in Opp’n to Defs.’ Mot. to Suppress Evidence

Obtained or Derived from Surveillance Under the FISA Amendments Act
and Mot. for Disc., May 9, 2014, United States v. Muhtorov,
187 F. Supp. 3d 1240 (D. Colo. 2015) (No. 12-CR-00033-JLK) ............ 9, 12, 25

Howard J. Kaplan et al., The History and Law of Wiretapping,

Am. Bar Ass’n (Apr. 20, 2012)............................................................................15

Jean-Yves Huwart & Loïc Verdier, Economic Globalisation: Origins and

Consequences, Org. for Econ. Co-operation and Dev. (2013) ..............................5

Linda Blake & Jim Lande, Trends in the U.S. International Telecommunications
Industry, Indus. Analysis Div., Fed. Commc’ns. Comm’n (1998) ........................5

Orin Kerr, The Surprisingly Weak Reasoning of Mohamud,

Lawfare, Dec. 23, 2016 ........................................................................................25

Report on the Surveillance Program Operated Pursuant to Section 702 of the

Foreign Intelligence Surveillance Act, Privacy & Civil Liberties Oversight
Bd. (2014) ............................................................................................................14

Ryan Devereaux et al., Data Pirates of the Caribbean: The NSA Is Recording
Every Cell Phone Call in the Bahamas, Intercept (May 19, 2014, 12:37 PM) .....6

vii
Stacey Ashton & Linda Blake, 2014 International Telecommunications Traffic
and Revenue Data, Telecommc’ns and Analysis Div., Fed. Commc’ns.
Comm’n (2016) ......................................................................................................6

Warrantless Searches and Seizures,

45 Geo. L.J. Ann. Rev. Crim. Proc. 49 (2016) ....................................................10

viii
 STATEMENT OF INTEREST1

Amicus curiae the Brennan Center for Justice at NYU School of Law2 is a

non-partisan public policy and law institute focused on fundamental issues of

democracy and justice. The Center’s Liberty and National Security (LNS) Program

uses innovative policy recommendations, litigation, and public advocacy to

advance effective national security policies that respect the rule of law and

constitutional values. One of the LNS Program’s main areas of research and

advocacy is foreign intelligence surveillance and the effect of changes in the law

and in technology on the privacy of Americans.

1
Pursuant to Federal Rule of Appellate Procedure Rule 29(a)(2), amicus
represents that all parties have consented to the filing of this brief. Pursuant to
Federal Rule of Appellate Procedure Rule 29(a)(4)(E), amicus curiae certifies that
no person or entity, other than amicus, its members, or its counsel, made a monetary
contribution to the preparation or submission of this brief or authored this brief in
whole or in part.
2
Amicus curiae does not purport to represent the position of the NYU School
of Law.

1
 SUMMARY OF ARGUMENT

Foreign intelligence surveillance under Section 702 of the Foreign

Intelligence Surveillance Act (FISA) raises novel Fourth Amendment issues that

could have a dramatic effect on the scope of Americans’ privacy. Outside of the

Foreign Intelligence Surveillance Court (FISC), courts are just beginning to

grapple with these questions. Unfortunately, in the few decisions to be reached

thus far, a fundamental misreading of the so-called “incidental overhear” doctrine

has begun to take hold. Unless corrected, this misreading threatens to create a

gaping hole in the Fourth Amendment’s warrant protection.3

The government must reasonably believe the “targets” of Section 702 to be

foreigners overseas, but the surveillance inevitably pulls in large amounts of

communications between foreigners and Americans. According to the government,

no warrant is required to obtain these communications because foreigners have no

Fourth Amendment rights, and because the capture of Americans’ communications

is “incidental.” The FISC, and a handful of courts following its lead, have accepted

this argument.

3
The arguments in this brief are taken in significant part from a law review article
published by counsel for amicus curiae: Elizabeth Goitein, Another Bite Out of Katz:
Foreign Intelligence Surveillance and the Incidental Overhear Doctrine, 55 Am.
Crim. L. Rev. 105 (2017).
2
 In fact, however, the Supreme Court has made clear that the government

may not infringe on Americans’ privacy rights unless it has a warrant or the

infringement falls within one of the established exceptions to the warrant

requirement. Courts have acknowledged that surveillance of communications

between foreign targets and Americans implicates Americans’ privacy rights.

Accordingly, for the surveillance in this case to be lawful, an established exception

to the warrant requirement must apply.

The “incidental overhear” doctrine on which the government relies is not

such an exception. Indeed, the doctrine arose in the context of criminal

investigations in which the government did obtain a warrant to conduct

surveillance. The Supreme Court, in those cases, held that warrants need not name

every participant in a conversation in order to be sufficiently “particularized,” and

lower courts further held that the accidental interception of a small number of

conversations that fall outside the scope of the warrant does not render the

surveillance unlawful. These rulings are facially inapplicable to a case in which no

warrant was obtained. If they are wrongly treated as an exception to the warrant

requirement, the result will be a profound erosion of Americans’ privacy in their

international communications.

3
 ARGUMENT

I. THE ADVENT OF MASS FOREIGN INTELLIGENCE

SURVEILLANCE POSES NOVEL AND HIGH-STAKES FOURTH
AMENDMENT QUESTIONS

Some legal and factual background is necessary to underscore both the

novelty of the legal framework this Court is asked to review and the broad

implications of the Court’s decision.

In past decades, there were significant legal and technological constraints on

the collection of Americans’ communications with foreign targets for the purpose

of obtaining foreign intelligence. The primary legal constraint was the Foreign

Intelligence Surveillance Act of 1978 (FISA). See Foreign Intelligence

Surveillance Act of 1978, Pub. L. No. 95-511, 92 Stat. 1783 (codified in scattered

sections of 8, 18, 47, 50 of the United States Code). Under this law, if the

government wished to wiretap communications between foreigners and Americans

from inside the United States, it had to show probable cause to the FISC that the

target was a “foreign power” or an “agent of a foreign power.” 50 U.S.C. §

1805(a)(2)(A). While FISA defines these terms broadly, see id. § 1801(a)&(b),

they still encompass only a small fraction of foreigners overseas (and an even

smaller fraction of Americans), and their application was subject to case-by-case

judicial review. See id. § 1805(a).

4
 The substantive and procedural limits set forth in FISA did not apply when

the government conducted foreign intelligence surveillance overseas, unless the

government intentionally targeted a particular, known American to acquire wire or

radio communications or sought to obtain wholly domestic radio communications.

See id. § 1801(f). Overseas surveillance that does not target Americans is generally

not subject to judicial review and is governed almost entirely by Executive Order

12333, which prohibits intentional targeting of U.S. persons but otherwise imposes

few restrictions on collection. See Exec. Order No. 12,333, 3 C.F.R. § 200 (1981),

reprinted as amended in 50 U.S.C. app. § 401. Nonetheless, until at least the

waning years of the 20th century, the limits of technology served as a practical

barrier to mass surveillance. See Elizabeth Goitein & Faiza Patel, What Went

Wrong with the FISA Court, Brennan Ctr. for Justice, 19–21 (2015). International

communication was difficult and expensive, see, e.g., Jean-Yves Huwart & Loïc

Verdier, Economic Globalisation: Origins and Consequences, Org. for Econ. Co-

operation and Dev., 35–36 (2013) (noting that “[i]n 1930, a three-minute telephone

call between New York and London cost USD 250”) and, therefore, relatively rare.

See Linda Blake & Jim Lande, Trends in the U.S. International

Telecommunications Industry, Indus. Analysis Div., Fed. Commc’ns. Comm’n, tbl.

4 (1998). In addition, the technological constraints on acquisition, storage, and

5
analytical capabilities rendered mass or indiscriminate surveillance unworkable,

forcing a more targeted approach.

The world today looks entirely different. Advances in communications

technology have made international communication easy and inexpensive, and

globalization has made it necessary. The result is an explosion in international

communication. The FCC reported 84.7 billion minutes spent on international

telephone calls by Americans in 2014—an average of nearly four and a half hours

per person, not including minutes spent on Internet-based video and voice

communications systems like Skype. See Stacey Ashton & Linda Blake, 2014

International Telecommunications Traffic and Revenue Data, Telecommc’ns and

Analysis Div., Fed. Commc’ns. Comm’n, 1 (2016). The number of emails sent

daily is projected to exceed 300 billion in 2020. See Email Statistics Report, 2019-

2023, Radicati Grp., 3 tbl. 2 (2019). Moreover, the limits on the government’s

technological capability to acquire, store, and process these communications have

become negligible. Under one program code-named “MYSTIC,” for instance, the

NSA reportedly collects all of the phone calls that transit into and out of certain

countries and stores them for a 30-day period to permit querying. See Ryan

Devereaux et al., Data Pirates of the Caribbean: The NSA Is Recording Every Cell

Phone Call in the Bahamas, Intercept (May 19, 2014, 12:37 PM); see also Bob

6
Sorokanich, Report: The NSA Is Recording Nearly Every Call Made in

Afghanistan, Gizmodo (May 23, 2014, 10:06 AM).

In the midst of this technological revolution, Congress significantly

weakened the legal protections afforded by FISA. Under Section 702 of FISA,

created by the FISA Amendments Act of 2008, Pub. L. No. 110-261, 122 Stat.

2435 (2008) at § 101(a)(2) (codified as amended at 50 U.S.C. § 1881a)—which

replaced the similar Protect America Act of 2007, Pub. L. No. 110-55, 121 Stat.

552 (expired 2008)—the government is no longer required to obtain individualized

authorization from the FISC when conducting domestic wiretapping of foreign

targets’ communications with Americans. See 50 U.S.C. § 1881a. Moreover, there

is no requirement that the target be a foreign power or agent of a foreign power.

The government may target any foreigner overseas and obtain all of that person’s

communications, as long as a significant purpose of the surveillance is to acquire

foreign intelligence, extremely broadly defined. See id; 50 U.S.C. § 1801(e).

These changes have enabled mass surveillance of communications between

foreigners and Americans. The exact number of such communications acquired is

unknown, but a 2011 FISC opinion noted that the government was obtaining 250

million Internet communications each year based on domestic foreign intelligence

surveillance alone, see [REDACTED], 2011 WL 10945618, at *9 (FISA Ct. Oct.

3, 2011) (unpublished), and as Appellant points out in his opening brief, that

7
number is likely several times higher today. See Appellant’s Opening Br. at 21.

Given the prevalence of international communication, it is inevitable that this

includes millions, if not tens of millions, of Americans’ communications; that

number could well be higher in the context of overseas surveillance, which is

relatively unregulated.

This state of affairs begs a constitutional question that ordinary federal

courts are just beginning to grapple with: what protections does the Fourth

Amendment afford to Americans whose communications with foreign targets are

“incidentally” swept up in the millions?

II. THE “INCIDENTAL OVERHEAR” DOCTRINE DOES NOT

JUSITFY WARRANTLESS SURVEILLANCE UNDER SECTION 702

Only a handful of federal courts (and only one Circuit Court) have addressed

this question. To date, most have adopted the government’s so-called “incidental

overhear” argument. In doing so, they risk writing a fundamental misinterpretation

of longstanding Fourth Amendment doctrine into the law, with the result that a

large and growing swathe of Americans’ communications will be stripped of the

protection afforded by the warrant requirement.

The gist of the argument is that the Fourth Amendment does not protect

foreigners overseas, and therefore no warrant is required to collect their

communications—even if the Americans with whom they communicate are

thereby “incidentally” subject to surveillance. See Gov’t’s Unclassified Mem. in

8
Opp’n to Defs.’ Mot. to Suppress Evidence Obtained or Derived from Surveillance

Under the FISA Amendments Act and Mot. for Disc. 36–38, May 9, 2014, United

States v. Muhtorov, 187 F. Supp. 3d 1240 (D. Colo. 2018) (No. 12-CR-00033-JLK)

[hereinafter Muhtorov Government’s Unclassified Memorandum]. The FISC has

embraced this theory, asserting that “incidental collections occurring as a result of

constitutionally permissible acquisitions do not render those acquisitions

unlawful.” See In re Directives [Redacted] Pursuant to Section 105B of FISA, 551

F.3d 1004, 1015 (FISA Ct. Rev. 2008). In recent decisions, other courts followed

the FISC’s lead. See United States v. Mohamud, No. 3:10–CR–00475–KI–1, 2014

WL 2866749 (D. Or. June 24, 2014) (unpublished) (“[Because the] § 702

acquisition targeting a non-U.S. person overseas is constitutionally permissible, so,

under the general rule, the incidental collection of defendant’s communications

with the extraterritorial target would be lawful.”); see also United States v.

Mohamud, 843 F.3d 420, 439-41 (9th Cir. 2016); United States v. Al-Jayab, No.

16-CR-00181 at 43-45 (N.D. Ill. June 28, 2018), https://bit.ly/35f9pKT; United

States v. Hasbajrami, No. 11-CR-623 (JG), 2016 WL 1029500, at *7–9 (E.D.N.Y.

Mar. 8, 2016) (unpublished).

Understanding where these courts went wrong requires going back to certain

undisputed cardinal Fourth Amendment principles. If Americans have a reasonable

expectation of privacy in their communications with foreigners overseas, then a

9
search or seizure of those communications implicates the Fourth Amendment and

must be “reasonable.” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J.,

concurring). The Supreme Court has held—and, on multiple occasions,

reaffirmed—that a warrantless search is “per se unreasonable” unless it falls within

one of “a few specifically established and well delineated exceptions.” Katz, 389

U.S. at 357; see also Riley v. California, 573 U.S. 373, 382 (2014) (“In the absence

of a warrant, a search is reasonable only if it falls within a specific exception to the

warrant requirement.”); Thompson v. Louisiana, 469 U.S. 17, 19–20 (1984)

(finding a consistent reaffirmation of “our understanding that in all cases outside

the exceptions to the warrant requirement the Fourth Amendment requires the

interposition of a neutral and detached magistrate . . . .”); Mincey v. Arizona, 437

U.S. 385, 390 (1978) (affirming as a “cardinal principle” that warrantless searches

are per se unreasonable). These exceptions are “jealously and carefully drawn,”

Jones v. United States, 357 U.S. 493, 499 (1958), with the Court having recognized

fewer than ten of them, by most counts.4

4
Some commentators consider certain exceptions to be variations of others, so the
exact count and description of the exceptions varies depending on the source. There
is general agreement, however, that there are exceptions to the warrant requirement
for exigent circumstances (e.g., “hot pursuit”); “Terry stops”; searches pursuant to
arrest and inventory searches; “plain view”; consent; “special needs” (including
administrative searches); motor vehicle searches; and border searches. See generally
Warrantless Searches and Seizures, 45 Geo. L.J. Ann. Rev. Crim. Proc. 49 (2016).
10
 The district court below failed at this basic step in the analysis. The court

assumed a Fourth Amendment interest, but claimed it was unnecessary to

determine whether there was an exception to the warrant requirement, as the

appropriate standard was “reasonableness” in either instance. See United States v.

Muhtorov, 187 F. Supp. 3d 1240, 1253 (D. Colo. 2015) (“I find the special

need/foreign intelligence exception argument somewhat academic and limiting,

because the standard ultimately is one of reasonableness . . . .”). In bypassing the

question of whether an exception existed and proceeding straight to whether the

warrantless search was reasonable, the court’s analysis contravened the bedrock

principle that warrantless searches are per se unreasonable absent a recognized

exception.

If one returns to that principle, the first question to ask is whether the

government’s collection of communications between Americans and foreigners

under Section 702 constitutes a “search” for Fourth Amendment purposes—i.e.,

whether Americans have a reasonable expectation of privacy in their

communications with foreigners.

A. Americans Have a Reasonable Expectation of Privacy in Their

Communications with Foreigners

Notably, not one of the recent Section 702 decisions held that an American’s

expectation of privacy in her communications—as distinct from the government’s

obligation to obtain a warrant before intruding on that privacy—turns on the

11
nationality or location of the other party to the communication. Indeed, the FISC

has long acknowledged that the acquisition of international communications

involving Americans implicates the Fourth Amendment. See, e.g., [REDACTED],

No. [REDACTED] 61–62 (FISA Ct. Apr. 26, 2017) (unpublished),

http://bit.ly/d56exnj (stating that Section 702 surveillance “implicates interests

protected by the Fourth Amendment” insofar as it captures communications to or

from Americans).

Citing the so-called “third party doctrine,” the government nonetheless

argues that Americans’ expectation of privacy evaporates entirely when their e-

mails land in the recipients’ inbox. See Muhtorov Government’s Unclassified

Memorandum at 59-60. The courts, however, have not accepted this extreme

position. Instead, the district court found—in the context of engaging in a

“reasonableness” analysis—that a sender’s privacy interest in e-mails sent over the

Internet is “at least somewhat diminished.” Muhtorov, 187 F. Supp. 3d at 1255; see

also Mohamud, 843 F.3d at 442 (finding a “diminished” privacy interest in

received communications); Al-Jayab, No. 16-CR-00181 at 49 (same); Hasbajrami,

2016 WL 1029500, at *11 (same).

This finding is questionable in light of intervening case law. In Carpenter v.

United States, the Supreme Court held that a warrant is required to obtain an

individual’s cell site location information (CSLI) from a wireless carrier. See

12
Carpenter v. United States, 138 S. Ct. 2206 (2018). The Court noted that such

information can provide “an intimate window into a person’s life, revealing not

only his particular movements, but his familial, political, professional, religious,

and sexual associations.” Carpenter, 138 S. Ct. at 2217 (internal quotation marks

and citation omitted). Under these circumstances, “the fact that the information is

held by a third party does not by itself overcome the user’s claim to Fourth

Amendment protection.” Id. at 2231. The Court contrasted CSLI with the

telephone numbers and bank records that were the subject of the cases establishing

the third-party doctrine, noting that the latter were “not confidential

communications.” Id. at 2216 (international quotation marks and citation omitted).

The logic of the Court’s opinion would be easily transferrable to e-mails. Indeed,

even before Carpenter, courts already had begun to recognize that a warrant is

required to obtain the content of e-mails, despite the fact that they are shared

with—and can be obtained from—third-party Internet Service Providers. See, e.g.,

United States v. Warshak, 631 F.3d 266, 282–88 (6th Cir. 2010); In re

Applications for Search Warrants for Info. Associated with Target Email Address,

Nos. 12–MJ–8119–DJW & 12–MJ–8191–DJW, 2012 WL 4383917, at *5 (D. Kan.

Sep. 21, 2012) (unpublished); United States v. Ali, 870 F. Supp. 2d 10, 39 n.39

(D.D.C. 2012).

In any case, it is apparent that the finding of a diminished expectation of

13
privacy in sent communications was not the basis for the district court’s holding

that no warrant is required for Section 702 surveillance. The court made this

finding—as did the other courts that have addressed this question—in the context

of assessing whether the surveillance satisfied the Fourth Amendment’s

“reasonableness” requirement. That assessment would have been entirely

unnecessary if no search or seizure had occurred—i.e., if there had been no

intrusion on a reasonable expectation of privacy. The courts thus either

acknowledged or assumed that there was such an expectation.5

B. The “Incidental Overhear” Doctrine Is Not an Exception to the

Warrant Requirement

If Americans have a reasonable expectation of privacy in their

communications with foreigners overseas, then the “incidental overhear” cases

would justify dispensing with a warrant only if they established an exception to the

warrant requirement. This follows from the basic rule, articulated above, that

warrantless searches and seizures are per se unreasonable unless an established

exception applies.

5
Moreover, even if courts were to maintain the fiction that any reasonable
expectation of privacy in communications terminates once they have been received,
“upstream collection” under FISA Section 702 enables collection of Americans’
communications while still winging their way overseas—i.e., before receipt. See
Report on the Surveillance Program Operated Pursuant to Section 702 of the
Foreign Intelligence Surveillance Act, Privacy & Civil Liberties Oversight Bd., 7
(2014).
14
 United States v. Kahn and United States v. Donovan are the foundational

cases in which the Supreme Court articulated the “incidental overhear” principle

(although neither case used this term). These cases came about in the context of

domestic criminal prosecutions that took place shortly after Congress enacted Title

III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III) to codify

the Supreme Court’s seminal ruling in Katz, 389 U.S. at 347. See Omnibus Crime

Control and Safe Streets Act of 1968, Pub. L. No. 90-351, §§ 801–802, 82 Stat.

197 (codified as amended in scattered sections of 5, 18, and 42 U.S.C.); Howard J.

Kaplan et al., The History and Law of Wiretapping, Am. Bar Ass’n, 4 (Apr. 20,

2012) (“Congress . . . regarded Katz and Berger as instructive on how to draft a

constitutionally sound wiretapping law and thereafter passed the Omnibus Crime

Control Act of 1968.”). In simplified terms, Title III required the government to

obtain a warrant to acquire the content of electronic communications. See 18

U.S.C. § 2516.

In both Kahn and Donovan, the government obtained Title III orders to

conduct wiretaps. See United States v. Donovan, 429 U.S. 413, 418–20 (1977);

United States v. Kahn, 415 U.S. 143, 144–45 (1974). The defendants argued that

the orders were invalid because they did not name every person whose

communications would be collected. See Donovan, 429 U.S. at 421; Kahn, 415

U.S. at 150. As discussed further below, the Court held that the warrant was

15
sufficiently “particularized” for Fourth Amendment purposes as long as it

identified the phone line to be tapped and the conversations to be acquired, and the

government followed rigorous “minimization” procedures to avoid the collection

of “innocent conversations”—i.e., those not specified in the warrant. See Donovan,

429 U.S. at 427 n.15; Kahn, 415 U.S. at 154–55, 157.

The theory that these cases established an exception to the warrant

requirement should immediately be suspect because the decisions did not use the

word “exception,” let alone discuss the fact that one was being created. It is

difficult to imagine that the Supreme Court would have added to the handful of

“jealously and carefully drawn” exceptions to the warrant requirement without

even saying so. And indeed, there was no need to find an exception, because the

government had obtained a warrant in these cases.

Nonetheless, courts in recent Section 702 cases, following the FISC’s lead,

essentially treated these cases as having indirectly established an exception to the

warrant requirement. They have characterized the “guiding principle” of the

“incidental overhear” cases as follows: “[W]hen surveillance is lawful in the first

place . . . the incidental interception of non-targeted U.S. persons’ communications

with the targeted persons is also lawful.” Hasbajrami, 2016 WL 1029500 at *9; see

also Mohamud, 843 F.3d at 440–41 (quoting Hasbajrami, 2016 WL 1029500 at

*9); Al-Jayab, No. 16-CR-00181 at 44 (same). It follows from this principle that

16
there is an exception to the warrant requirement for those in contact with people—

such as foreigners overseas—whose conversations may lawfully be intercepted

without a warrant.6

A close examination of the relevant decisions shows the courts’ error. In

United States v. Kahn, the government secured a Title III order to wiretap two

phones belonging to Irving Kahn. The judge found probable cause to believe that

Kahn and “others as yet unknown” were conducting an illegal gambling business,

and authorized interception of their communications about the criminal enterprise.

The surveillance picked up conversations of Kahn’s wife, Minnie Kahn, which

revealed that she was involved in the business as well—information that the

government had not previously known. See Kahn, 415 U.S. at 145-47, 152.

Both Kahn and his wife were charged, and they moved to suppress the

phone conversations. See id. at 148. Title III requires the government to specify

“the identity of the person, if known, committing the offense and whose

communications are to be intercepted.” 18 U.S.C. § 2518(1)(b)(iv) (emphasis

added). On its face, as the Court held, this provision does not require the

government to specify the name of everyone who is a legitimate target; if it does

6
Whether courts have properly interpreted Supreme Court precedent to hold that
foreigners overseas have no claim to Fourth Amendment protection is debatable, but
beyond the scope of this brief. See Goitein & Patel, supra, at 12 n.52 (summarizing
the bases for the multiple opinions in United States v. Verdugo-Urquidez, 494 U.S.
259 (1990)).
17
not yet know the identity of all the probable perpetrators, it is entitled to include

“others as yet unknown” in its application. Kahn, 415 U.S. at 151–53. The lower

court, however, “seemed to believe that taking the statute at face value would

result in a wiretap order amounting to a ‘virtual general warrant,’ since the law

enforcement authorities would be authorized to intercept communications of

anyone who talked on the named telephone line.” Id. at 154.

The Court rejected that reasoning. It cited precedent holding that “[t]he

Fourth Amendment requires a warrant to describe only the place to be searched,

and the persons or things to be seized, not the persons from whom the things will

be seized.” Id. at 155 n.15 (internal quotation marks and citations omitted). In the

case of a wiretap, the particularity requirement is met by identifying the phone line

to be tapped and the conversations to be acquired (e.g., conversations about a

suspected gambling operation). See id. at 154–55, 154 n.13, 157. With these

requirements met, the Court observed, the Kahns’ fear that law enforcement

officers could acquire the communications of “anyone who talked on the named

telephone line” was unfounded:

[N]either the statute nor the wiretap order in this case would allow the
federal agents such total unfettered discretion. By its own terms, the
wiretap order in this case conferred authority to intercept only
communications “concerning the above-described [gambling]
offenses.” Moreover, in accord with the statute the order required the
agents to execute the warrant in such a manner as to minimize the
interception of any innocent conversations . . . . Thus, the failure of

18
 the order to specify that Mrs. Kahn’s conversations might be the
subject of interception hardly left the executing agents free to seize at
will every communication that came over the wire . . . .

Id. at 154–55 (alteration in original).

The central holding of Kahn, in short, was twofold: (1) Title III does not

require that a wiretap order name every person whose conversations will be the

target of interception, and (2) the Fourth Amendment’s particularity requirement is

satisfied by specifying the facilities to be surveilled and the conversations to be

seized.

In Donovan, the Court further refined its interpretation of Title III’s

requirements. It held that, while the statute does not require the government to

identify as-yet unknown targets, it does require the government to identify every

known target—i.e., every person for whom there is probable cause to suspect

criminal activity at the time the application is made. See Donovan, 429 U.S. at

423–28. This is a statutory requirement, however, not a constitutional one. The

Court engaged in no separate Fourth Amendment analysis; it merely reiterated in a

footnote the principle articulated in Kahn:

The Fourth Amendment requires specification of “the place to be

searched, and the persons or things to be seized.” In the wiretap
context, those requirements are satisfied by identification of the
telephone line to be tapped and the particular conversations to be
seized. It is not a constitutional requirement that all those likely to be
overheard engaging in incriminating conversations be named.

19
Id. at 427 n.15 (citation omitted).

In neither of these cases did the Court hold or suggest that no warrant was

necessary to collect the defendants’ conversations, as long as there was a warrant

for the person with whom the defendants were communicating. To the contrary,

the Court observed that the warrant the government had obtained expressly

encompassed the defendants’ communications, by virtue of specifying the phone

line on which they occurred and the matters being discussed. The Court then

affirmed that the Fourth Amendment’s particularity requirement requires no further

information (although in one of the cases, the Court held that the failure to state the

defendant’s name violated the statute).

A rule that addresses what information renders a warrant sufficiently

particularized can have no application to cases in which no warrant is obtained.

The principle that those in contact with a surveillance target are not entitled to any

legal process beyond what the target must receive cannot logically be derived from

Kahn or Donovan.

Courts interpreting Section 702 have also relied on lower court decisions

that interpreted and applied Kahn and Donovan. See Hasbajrami, 2016 WL

1029500, at *9; Muhtorov, 187 F. Supp. 3d at 1250–53; Mohamud, 2014 WL

2866749, at *15; In re Directives [Redacted] Pursuant to Section 105B of the

Foreign Intelligence Surveillance Act, 551 F.3d at 1015. For the most part,

20
however, these cases do not offer any greater support for the “warrant exception”

approach. For instance, in United States v. Schwartz, the defendant complained that

the government obtained conversations not covered by the warrant. See United

States v. Schwartz, 535 F.2d 160, 164 (2d Cir. 1976). The Second Circuit saw “no

error in [the district judge’s] conclusion that the extent of non-pertinent matters

intercepted was slight. It is virtually impossible to completely exclude all irrelevant

matter from intercepted conversations.” Id. In other words, a warrant must specify

the conversations to be acquired, but the accidental acquisition of a small number

of “innocent conversations” does not invalidate the surveillance. This is a far cry

from holding that the government may freely acquire, without a warrant, the

communications of anyone in contact with a lawfully surveilled target.

In United States v. Martin and United States v. Figueroa, the defendants’

conversations took place over the phone lines designated in the warrant and the

conversations related to the offenses being investigated. See United States v.

Figueroa, 757 F.2d 466, 470–71 (2d Cir. 1985); United States v. Martin, 599 F.2d

880, 883–86 (9th Cir. 1979). Accordingly, they were encompassed by the warrants

the government had obtained, and there was no need for the courts to address

whether their communications could be warrantlessly acquired.7 These decisions

7
One of the cases cited by the Hasbajrami court involved warrantless surveillance
and does contain some language (albeit in dicta) that would support the interpretation
of the courts interpreting Section 702. In United States v. Bin Laden, the district
21
instead addressed whether probable cause must be established for every participant

in the covered conversations, and whether post-Kahn case law had diluted the

requirement to minimize interception of “innocent conversations” to the point of

unconstitutionality.8

court cited United States v. Verdugo-Urquidez for the proposition that foreigners
overseas have no Fourth Amendment rights. United States v. Bin Laden, 126 F.
Supp. 2d 264, 270, 281 (S.D.N.Y. 2000) (citing Verdugo-Urquidez, 494 U.S. at 265,
271). It then cited Kahn and its progeny for the proposition that “in the Title III
context, incidental interception of a person’s conversations during an otherwise
lawful surveillance is not violative of the Fourth Amendment.” Bin Laden, 126 F.
Supp. 2d at 280 (citations omitted). It observed that, if the warrantless surveillance
of the defendant had indeed been incidental, “the combination of Verdugo-Urquidez
and the incidental interception cases outlined above would permit the surveillance.”
Id. at 281. In reaching this conclusion, however, the district court engaged in the
same fundamental misreading of the incidental overhear cases as the courts
reviewing Section 702. The fact that a warrant remains valid despite the inability to
exclude every “innocent conversation” has no bearing on whether a warrant is
necessary to obtain an American’s conversations with a foreign target.
8
In Martin, the court held that the government need not show probable cause as to
every person named as a “probable converser” in the warrant, reasoning that because
“[t]here is no constitutional requirement that the persons whose conversations may
be intercepted be named in the application,” it followed that “the Fourth Amendment
does not require that the reasons for naming all probable conversers be shown in the
application.” Martin, 599 F.2d at 889. In Figueroa, the court addressed whether
post-Kahn case law had diluted minimization requirements to the point that Title III
was unconstitutional on its face; it held that Title III remained constitutional. See
Figueroa, 757 F.2d at 471–73. It also reached essentially the same conclusion as the
court in Martin: “[T]he government need not establish probable cause as to all
participants in a conversation. If probable cause has been shown as to one such
participant, the statements of the other participants may be intercepted if pertinent
to the investigation.” Id. at 475 (citation omitted) (emphasis added).
22
 In short, the constitutional crux of Kahn, Donovan, and their progeny is that

a warrant to obtain electronic communications is sufficiently particularized if it

includes the facilities to be surveilled and the conversations to be seized; and, as

long as reasonable procedures are in place to avoid capturing conversations that

fall outside the warrant’s scope, the accidental interception of a small number of

such conversations does not violate the Fourth Amendment. It is not possible to

read this line of cases as establishing—directly or indirectly—an exception to the

warrant requirement.

At some level, the courts reviewing Section 702 must have been

uncomfortable with the rule they derived—i.e., that surveillance of anyone in

contact with a lawfully surveilled target is itself lawful. After holding that a

warrant is not required to obtain Americans’ communications with Section 702

targets because the targets have no Fourth Amendment rights, they all went on to

conduct a Fourth Amendment “reasonableness” analysis, and they emphasized the

constitutional significance of minimization requirements. See Mohamud, 843 F.3d

at 441-44; Al-Jayab, No. 16-CR-00181 at 48-56; Hasbajrami, 2016 WL 1029500,

at *10-13; Muhtorov, 187 F. Supp. 3d at 1254-57; Mohamud, 2014 WL 2866749,

at *22-23. Neither reasonableness nor minimization would be necessary if

protections owed to those “incidentally” surveilled were no greater than those

owed to the foreign targets.

23
 There is no legal justification or precedent, however, for picking and

choosing among the protections that flow from the acknowledgment of a Fourth

Amendment interest. Once a court determines that a reasonable expectation of

privacy exists and will be invaded by the government’s action, a warrant is

mandatory under Supreme Court jurisprudence unless an established exception

applies. None of the “incidental overhear” cases suggested that they were carving

out an exception to the warrant requirement; rather, they delineated the extent to

which a warrant may encompass unnamed persons and pull in “innocent

conversations” without running afoul of the Fourth Amendment.

CONCLUSION

The emerging case law on the constitutionality of Section 702 surveillance is

taking Fourth Amendment jurisprudence down a worrisome constitutional detour.

Courts have recognized, explicitly or implicitly, that Americans have protected

privacy interests in their communications with foreign targets. Yet they have found

that the lack of Fourth Amendment protections for the targets strips Americans of

their warrant protections, as well. They have reached this conclusion by misreading

the “incidental overhear” cases as indirectly establishing an exception to the

warrant requirement, when in fact, the communications at issue in those cases were

found to fall within the warrants the government had obtained. Read properly, the

24
“incidental overhear” cases have no application to the warrantless collection of

Americans’ communications under Section 702.

This Court’s analysis should proceed from the premise that Americans have

a reasonable expectation of privacy in their communications with foreigners, and

that interest is not extinguished or lessened simply because the foreigners’ own

privacy interest is not constitutionally cognizable. For this reason among others,9

9
A proper understanding of the “incidental overhear” cases does not end the
inquiry into whether a warrant is required to collect communications between
foreign targets and Americans under Section 702 of FISA. There is also the question
of whether a “foreign intelligence exception” applies. A full discussion of this
argument is beyond the scope of this brief; however, it is addressed briefly here
because the argument for a foreign intelligence exception that would be broad
enough to legitimize warrantless surveillance under Section 702 suffers from a
similar flaw to that in the “incidental overhear” argument.
Although the Supreme Court has never directly recognized a foreign intelligence
exception to the warrant requirement, several lower courts did so in cases that arose
before FISA went into effect. See, e.g., United States v. Truong Dinh Hung, 629 F.2d
908, 912–916 (4th Cir. 1980); United States v. Buck, 548 F.2d 871, 875–76 (9th Cir.
1977); United States v. Butenko, 494 F.2d 593, 605 (3d Cir. 1974); United States v.
Brown, 484 F.2d 418, 425–27 (5th Cir. 1973). As Appellant notes in his opening
brief, however, the courts in these cases emphasized the need for strict limitations
on the foreign intelligence exception, including a requirement that the surveillance
be directed at foreign powers or their agents. See Appellant’s Opening Br. at 35. No
such requirement exists when the government conducts surveillance under Section
702.
In its briefs below, the government argued that the limits described in the “foreign
intelligence exception” cases are inapposite because the “targets” in those cases were
inside the U.S., while the “targets” of Section 702 surveillance are foreigners
overseas. See Muhtorov Government’s Unclassified Memorandum at 50. Once
again, however, there is no basis in Fourth Amendment doctrine for the notion that
when an American’s privacy is breached, the reach of the warrant requirement—or
the breadth of any exception to it—turns on the nationality of the “target.” See Orin
Kerr, The Surprisingly Weak Reasoning of Mohamud, Lawfare, Dec. 23, 2016 (“In
25
amicus curiae urge this Court to reverse the decision below.

Dated: October 7, 2019 By: /s/ Elizabeth Goitein

THE BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
1140 Connecticut Ave. NW
Ste. 1150
Washington, DC 20036
(202) 249-7192
goiteine@brennan.law.nyu.edu
Counsel for Amicus Curiae

Fourth Amendment law, the concept of ‘targeting’ doesn’t exist. . . . Fourth

Amendment law focuses what the government does, not what the government is
thinking when it does it.”). And there is certainly no principled basis for the
government’s invention of a watered-down foreign intelligence exception that
arbitrarily splits the difference between the lack of protection available to foreigners
and the robust protections our Constitution requires for Americans.

26
 CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. P.

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brief has been prepared in a proportionally spaced typeface using Microsoft Word

2016 in 14-point Times New Roman.

Dated: October 7, 2019 By: /s/ Elizabeth Goitein

THE BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
1140 Connecticut Ave. NW
Ste. 1150
Washington, DC 20036
(202) 249-7192
goiteine@brennan.law.nyu.edu
Counsel for Amicus Curiae

1
 CERTIFICATE OF DIGITAL SUBMISSION

I hereby certify that with respect to the foregoing:

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exact copy of those documents;

3. The digital submissions have been scanned for viruses with the most recent

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Windows, and according to the program are free of viruses.

Dated: October 7, 2019 By: /s/ Elizabeth Goitein

THE BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
1140 Connecticut Ave. NW
Ste. 1150
Washington, DC 20036
(202) 249-7192
goiteine@brennan.law.nyu.edu
Counsel for Amicus Curiae

2
 CERTIFICATE OF SERVICE

I hereby certify that on October 7, 2019, I caused the foregoing Brief of

Amicus Curiae to be electronically filed via the PACER NextGen system, which will

send notification of such filing to the following:

James C. Murphy
James.Murphy3@usdoj.gov

Joseph Palmer
Joseph.Palmer@usdoj.gov

Counsel for Plaintiff-Appellee

John C. Arceci
John_Arceci@fd.org

Ashley Gorski
AGorski@aclu.org

Patrick Toomey
PToomey@aclu.org

Counsel for Defendant-Appellant

Dated: October 7, 2019 By: /s/ Elizabeth Goitein

THE BRENNAN CENTER FOR JUSTICE
AT NYU SCHOOL OF LAW
1140 Connecticut Ave. NW
Ste. 1150
Washington, DC 20036
(202) 249-7192
goiteine@brennan.law.nyu.edu
Counsel for Amicus Curiae