ACLU, EFF Seek Rehearing With 9th Circuit Involving Section 702 Surveillance of US Citizen

The American Civil Liberties Union, ACLU of Oregon and Electronic Frontier Foundation are asking the full 9th U.S. Circuit Court of Appeals to rehear the case of Mohamed Osman Mohamud, a Somali-born, naturalized U.S. citizen, after a three-judge panel in December upheld his conviction for attempting to bomb a Portland, Oregon, ceremony in 2013 (see 1607050073). The 9th Circuit panel ruled that since the government was targeting a foreign national overseas under Section 702 of the Foreign Intelligence Surveillance Act, no warrant was required to intercept that person's communications or Mohamud's emails that were incidentally collected in the investigation. Section 702 allows U.S. intelligence agencies to collect information about non-U.S. persons located overseas; but critics say Americans' personal information is swept up (see 1605100001). In Monday's amici filing requesting an en banc hearing, the three groups said the panel "improperly" relied on the "incidental overhear" rule to create a new exception to the warrant requirement, but that rule wasn't recognized as an exception. Such a misreading creates "a dangerous end-run around the warrant requirement -- including in ordinary criminal investigations," the filing said. The groups said the panel held that the third-party doctrine "diminished" Mohamud's expectation of email privacy. The advocacy groups said the panel "inexplicably carved out of its decision" the government practice of intentionally searching the Section 702 databases for Americans' communications.