WEBVTT - Government Snooping Allowed by One Court (Audio) 0:00:01.240 --> 0:00:05.000 You're listening to Bloomberg Law. I'm Michael Best with June Grosso. 0:00:05.640 --> 0:00:08.799 Section seven or two of the Foreign Intelligence Surveillance Act 0:00:09.000 --> 0:00:12.200 allows the government to intercept the emails and phone calls 0:00:12.240 --> 0:00:15.560 of non Americans who live outside the United States without 0:00:15.560 --> 0:00:18.840 getting a warrant. But when the government does that, it 0:00:18.880 --> 0:00:22.560 will also capture calls and emails made between Americans and 0:00:22.640 --> 0:00:26.400 the targeted non Americans. Can the government use those Americans 0:00:26.440 --> 0:00:30.320 communications and criminal investigations? The Ninth Circuit Court of Appeals 0:00:30.320 --> 0:00:33.040 says yes. And here to discuss their decision and the 0:00:33.080 --> 0:00:37.080 Foreign Intelligence Surveillance Act is the distinguished Constitutional Scholar from 0:00:37.120 --> 0:00:39.960 Harvard Law School, Noah Feldman, who is also a Bloomberg 0:00:40.040 --> 0:00:42.879 View contributor. No, welcome back to the program. Always a 0:00:42.880 --> 0:00:45.760 pleasure to have you here. Thank you for having me um. So, 0:00:46.880 --> 0:00:50.320 are there any limits under the Foreign Intelligence Surveillance Act 0:00:50.360 --> 0:00:53.280 to what the government can read or listen to when 0:00:53.440 --> 0:00:59.040 when they're intercepting communications by non Americans? Well, in general, 0:00:59.720 --> 0:01:03.200 the answer his no. If you're a non American and 0:01:03.240 --> 0:01:07.840 you're outside the United States, then you're not protected by 0:01:08.040 --> 0:01:12.680 the law and the government can go ahead and listen 0:01:12.720 --> 0:01:15.039 to you. What was at stake in this case, and 0:01:15.120 --> 0:01:20.240 what makes this case so significant is that it's not 0:01:20.319 --> 0:01:26.440 about communications solely involving non Americans outside the US. It's 0:01:26.480 --> 0:01:31.400 about communications by Americans in the US recorded by the 0:01:31.520 --> 0:01:35.240 US government inside the country. Now, will you explain the 0:01:35.280 --> 0:01:39.560 situation a little bit what actually happened. Yeah, there was 0:01:39.600 --> 0:01:45.160 an investigation that involved a man named Mohammed Mohammad who 0:01:45.680 --> 0:01:51.400 was eventually convicted of an attempted bombing in Portland, Oregon, 0:01:51.680 --> 0:01:57.600 on Black Friday of at a Christmas tree raising ceremony. 0:01:58.600 --> 0:02:05.440 And as part of that investigation, the which incidentally came 0:02:05.440 --> 0:02:08.360 out of a staying operation and FBI sting operation. So 0:02:08.400 --> 0:02:13.600 as part of that investigation, the FBI had um traces 0:02:13.639 --> 0:02:16.960 on communications of an unnamed person outside the US. It 0:02:17.000 --> 0:02:20.240 may well have been someone with whom Mohammed was communicating 0:02:20.240 --> 0:02:21.960 in Yemen, but we don't know that for sure from 0:02:21.960 --> 0:02:27.520 the records, and the US government recorded, the FBI recorded 0:02:27.960 --> 0:02:31.600 that Mohammed was sending emails from inside the US to 0:02:31.760 --> 0:02:36.680 this person. The government then took those emails, read those emails, 0:02:36.800 --> 0:02:39.519 and brought them to a U S court and got 0:02:39.520 --> 0:02:43.000 a warrant to investigate Mohammed, and that led to the 0:02:43.040 --> 0:02:48.840 process ultimately in which he was um stung and then 0:02:48.960 --> 0:02:51.040 arrested that and sent to prison. And what did the 0:02:51.120 --> 0:02:55.080 ninth Circuits say in upholding his conviction. The Ninth Circuit 0:02:55.320 --> 0:03:03.800 said that as long as the initial wire tapping, that 0:03:03.919 --> 0:03:07.760 is to say, the interception of the communications was targeted 0:03:08.400 --> 0:03:12.200 not at Mohammud, but it's someone outside the US, non 0:03:12.200 --> 0:03:16.600 American outside the US, then any emails by Americans written 0:03:16.639 --> 0:03:18.680 in the US that the government happened to intercept and 0:03:18.720 --> 0:03:24.160 read or quote unquote incidental to the initial investigation. And 0:03:24.200 --> 0:03:28.840 because they were incidental, they were permitted without a wired 0:03:29.400 --> 0:03:32.240 without a warrant under the Fourth Amendment of the Constitution. 0:03:33.280 --> 0:03:37.280 No what so Section seven O two makes a distinction 0:03:37.320 --> 0:03:41.360 between targeted and untargeted surveillance. If the government is allowed 0:03:41.400 --> 0:03:45.480 to monitor emails of targeted non Americans living abroad without 0:03:45.480 --> 0:03:49.080 a warrant, can that be done without happening to see 0:03:49.160 --> 0:03:54.200 an Americans exchange with one of those people. Well, it's 0:03:54.240 --> 0:03:58.280 definitely true that if the government is listening to the 0:03:58.320 --> 0:04:01.680 communication of somebody outside the US US, sometimes that person 0:04:01.680 --> 0:04:04.680 will get communications from Americans. I mean, that could certainly happen, 0:04:05.440 --> 0:04:07.640 and I don't think anyone disputes that if that happens, 0:04:07.680 --> 0:04:10.440 the government could capture those The question is, can the 0:04:10.440 --> 0:04:14.800 government then read them and use them as evidence to 0:04:15.200 --> 0:04:18.160 commence or participate in an investigation against an American or 0:04:18.200 --> 0:04:20.640 does the government at that point need immediately to get 0:04:20.880 --> 0:04:24.120 a warrant in order to read that. And that's the 0:04:24.400 --> 0:04:27.640 essence of the question in the case, Well, how if 0:04:27.960 --> 0:04:30.839 you allow this, If there's no Fourth Amendment problem with 0:04:31.160 --> 0:04:34.680 this situation, then how is it that courts can prevent 0:04:34.720 --> 0:04:38.159 the government from effectively doing a backdoor to get the 0:04:38.160 --> 0:04:42.040 Americans communications without a warrant by saying, well, we know 0:04:42.400 --> 0:04:44.800 this American is communicating with people outside the country, so 0:04:44.880 --> 0:04:48.680 let's target them and then we'll get this Americans communications. Yeah, 0:04:48.720 --> 0:04:51.520 that's the big risk, and I think they're sort of 0:04:51.520 --> 0:04:54.240 two ways potentially to solve that problem. One would be 0:04:54.320 --> 0:04:58.000 to say that if the government, let's say, wants to 0:04:58.520 --> 0:05:01.800 spy on me and they know that I email with 0:05:01.839 --> 0:05:04.120 a person I don't know in the United Kingdom, and 0:05:04.120 --> 0:05:06.760 the government then goes and listens to that person's communications 0:05:06.760 --> 0:05:09.120 and the hopes of capturing mine, that they were really 0:05:09.120 --> 0:05:11.880 targeting me all along and that they weren't targeting the 0:05:11.920 --> 0:05:13.680 other person, that it's not actually the case that they 0:05:13.680 --> 0:05:16.960 were targeting them. The harder case is a scenario where 0:05:17.400 --> 0:05:19.520 the very reason that the government is interested in someone 0:05:19.560 --> 0:05:21.520 abroad us that they think that person might be talking 0:05:21.560 --> 0:05:25.800 to Americans. Imagine it's an al Qaeda recruiter and our 0:05:25.839 --> 0:05:28.080 great worries that the person might be talking to Americans, 0:05:28.279 --> 0:05:31.960 and the government then targets quote unquote that person and 0:05:32.000 --> 0:05:34.160 then says, oh, incidentally, we happen to have gotten all 0:05:34.160 --> 0:05:37.279 these communications of Americans. That's the really tricky case, and 0:05:37.320 --> 0:05:39.479 that's the case in which the Court said it's fine, 0:05:39.640 --> 0:05:42.200 and in which my guess is other courts of appeal 0:05:42.240 --> 0:05:44.000 around the country are going to disagree and say that 0:05:44.000 --> 0:05:48.000 that's not incidental that the real targeting took place at 0:05:48.000 --> 0:05:49.880 the level of knowing that there would be Americans whose 0:05:49.920 --> 0:05:53.520 communications would be sent. No. In your Bloomberg You column, 0:05:53.760 --> 0:05:56.680 you suggest that this is going to end up at 0:05:56.720 --> 0:06:00.559 the Supreme Court. If it does, how is the court 0:06:00.680 --> 0:06:04.520 likely to view this? That's going to depend on who 0:06:04.520 --> 0:06:07.240 the justices are when it takes place. And it's a 0:06:07.279 --> 0:06:10.279 great example of the kind of issue that may look 0:06:10.279 --> 0:06:15.040 extremely different after Justice. Scalia is replaced by, you know, 0:06:15.080 --> 0:06:20.800 by a Trump nominee, because the closest question on this 0:06:20.880 --> 0:06:25.479 would be whether Justice Kennedy, as a swing voter as 0:06:25.480 --> 0:06:27.880 he often is, would be on the liberal side of 0:06:27.880 --> 0:06:29.599 the conservative side of the question. I think the liberal 0:06:29.600 --> 0:06:32.640 side would be to say, no, they can't target and 0:06:32.640 --> 0:06:34.960 and that this would count as targeting, and the conservative 0:06:34.960 --> 0:06:37.440 side would be to accept the Ninth Circuits ruling. So 0:06:37.640 --> 0:06:39.440 if this case were heard today, it might well be 0:06:39.440 --> 0:06:41.960 a four four tie. But if the case is heard 0:06:42.040 --> 0:06:47.000 after a new justice is added, then even then it 0:06:47.040 --> 0:06:50.160 would you know, very possibly go five four for the government. Now, 0:06:50.320 --> 0:06:54.160 this statute is controversial for this reason and some others 0:06:54.640 --> 0:06:59.159 among people who are concerned about civil liberties. Is is 0:06:59.160 --> 0:07:01.520 there something Congress what to do for I mean, you know, 0:07:01.560 --> 0:07:03.760 if you've got the court saying this is okay, is 0:07:03.760 --> 0:07:07.720 there a fixed legislatively that Congress should consider. Yeah. I 0:07:07.720 --> 0:07:10.960 think Congress could clarify section seven or two of the 0:07:11.040 --> 0:07:14.320 of the law to define what counts as targeting and 0:07:14.320 --> 0:07:17.120 what counts is incidental. And they could say, for example 0:07:17.200 --> 0:07:21.000 that if the government is choosing to listen to somebody 0:07:21.040 --> 0:07:25.000 abroad because they think that there will be Americans communicating 0:07:25.000 --> 0:07:28.000 with that person, then anything captured as part of that 0:07:28.040 --> 0:07:31.920 communication shouldn't be treated as only incidental, but should be 0:07:31.960 --> 0:07:36.400 treated as in fact um part of the targeting, and 0:07:36.440 --> 0:07:39.840 therefore would require a warrant. The question is would a 0:07:39.920 --> 0:07:44.280 Republican Congress with a Republican president be likely to amend 0:07:44.680 --> 0:07:46.640 the law in that direction? And I have to say 0:07:46.720 --> 0:07:49.520 that its team is relatively unlikely. No. What the Ninth 0:07:49.560 --> 0:07:52.640 Circuit is considered one of the most liberal, if not 0:07:52.720 --> 0:07:55.600 the most liberal. What was the panel like that it 0:07:55.680 --> 0:07:58.679 came out with this decision? This was a panel dominated 0:07:58.720 --> 0:08:03.120 by Republican pointees. And it is possible that there will 0:08:03.160 --> 0:08:05.640 be a call for rehearing by the entirety of the 0:08:05.720 --> 0:08:07.640 Ninth Circuit. That happens a lot at the Ninth Circuit, 0:08:08.040 --> 0:08:10.160 more than in almost any other circuit in the country. 0:08:10.200 --> 0:08:13.640 And they have a rigorous internal process whereby judges who 0:08:13.640 --> 0:08:16.000 don't like a specific outcome will call for rehearing in 0:08:16.080 --> 0:08:18.800 bank and then they have to vote on that. And 0:08:18.840 --> 0:08:20.680 so I think it's quite possible that they will be 0:08:20.680 --> 0:08:23.160 rehearing in bank on this issue. No One last thing 0:08:23.200 --> 0:08:25.640 in about thirty seconds. Do you think this is the 0:08:25.680 --> 0:08:27.720 kind of case the Supreme Court will take right away 0:08:27.720 --> 0:08:29.720 if it's petitioned, or are they going to wait for 0:08:29.760 --> 0:08:32.000 other courts to rule on it. My instinct is that 0:08:32.040 --> 0:08:35.320 they will wait because it may be that all federal 0:08:35.320 --> 0:08:37.400 courts that they agree with this position. They still might 0:08:37.400 --> 0:08:39.280 take the issue then, but the need to do so 0:08:39.320 --> 0:08:41.199 it would be lowered. But it's more likely would be 0:08:41.200 --> 0:08:42.760 the kind of case for other circuits to say the 0:08:42.800 --> 0:08:45.559 second circuit will come out the other way. And if 0:08:45.559 --> 0:08:48.360 that happens, then the justices have a circuit split, which 0:08:48.360 --> 0:08:50.360 is what they like to see before they take a case, 0:08:50.600 --> 0:08:52.640 because it means the case has had a chance to, 0:08:52.960 --> 0:08:55.439 as they say, percolate, meaning a chance for lots of 0:08:55.480 --> 0:08:58.040 different judges to weigh in. And that gives everybody a 0:08:58.080 --> 0:09:00.800 chance in the legal system to take positions and think 0:09:00.840 --> 0:09:02.960 it over, and in theory it produces a better judgment 0:09:02.960 --> 0:09:05.080 by the time the Supreme Court gets to the issue. Well, 0:09:05.120 --> 0:09:08.040 thank you very much to Noah Feldman, Professor of Constitutional 0:09:08.040 --> 0:09:10.880 and International law at Harvard Law School and a Bloomberg 0:09:10.960 --> 0:09:13.839 View columnist. Coming up on Bloomberg Law, we're going to 0:09:13.880 --> 0:09:17.760 talk about diversity at law firms, the diversity of partners 0:09:17.760 --> 0:09:20.679 at law firms is frankly not very high, and Corporate 0:09:20.679 --> 0:09:22.839 America is concerned about it and trying to pressure law 0:09:22.880 --> 0:09:26.720 firms to promote more women and people of color into 0:09:26.800 --> 0:09:29.560 partnership positions. If they're going to hire these firms to 0:09:29.640 --> 0:09:33.160 represent them, that's coming up straight ahead on Bloomberg Law. 0:09:33.640 --> 0:09:35.240 This is Bloomberg