Sheesh. Looks like I got it backwards but as I understand it now the case finally said nothing about 4th amendment rights as the appeals court said he failed to assert them. Cosequently this case says nothing about the current debate. Is that right?
Both the lower court and appeals court had plenty to say about the 4th amendment. The appeals case speaks for itself, and I think can be construed in various ways that are useful in the current debate. But the case does not challenge the Constitutionality of NSA data gathering, nor does it probe or challenge the propriety of filtering that information in response to warrantless FBI requests for specific information.
The district court, in determining that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications, distinguished the holding of the District of Columbia Circuit in Halkin v. Helms, 598 F.2d 1 (1978). There the court held (see note 5 herein at page 275) that application of the state secret privilege required dismissal of plaintiffs' claims based on alleged interception by the NSA of their overseas communications because the fact of interception need not be and was not divulged. Here, on the other hand, defendants had divulged the interception and later transmittal to the FBI. ^8 Thus, the district court reasoned, the state secret privilege was no impediment to the adjudication of Jabara's fourth amendment claim. The district court went on to hold, citing Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), that the fourth amendment was implicated since Jabara had a reasonable expectation of privacy with respect to his overseas telegraphic communications. The district court further held that, since the record, classified or otherwise, did not reveal evidence that Jabara was a foreign agent or was acting in collaboration with a foreign agent, even if there is a foreign agent exception to the warrant requirement, the exception could not be applied here. The district court therefore granted summary judgment and injunctive relief to Jabara. 476 F.Supp. at 577-579.There was a brief dissent ...As heretofore stated, Jabara does not contend on appeal that the NSA's interception of his foreign telegraphic communications violated his fourth amendment rights, and therefore we may take as a given the proposition that the NSA lawfully received and was in possession of the communications. From this proposition defendants argue, we think correctly, that Jabara's fourth amendment rights were not violated when the summaries were turned over to the FBI because this was not a "search" or "seizure" within the meaning of the amendment. ...
Jabara contends, however, that there was a "search" or "seizure" when the summaries were turned over by the NSA to the FBI under the holding in Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980). There some pornographic 8-millimeter films, in boxes that were in sealed packages, were misdelivered after shipment, and the recipient opened the packages. On the boxes were descriptions and drawings that clearly indicated their contents. The recipient, however, did not view the films but turned them over to an FBI agent. FBI agents, then, without a warrant, viewed the films with a projector. The question before the Court was whether the films should have been suppressed because the showing of the films with a projector was an illegal search under the fourth amendment.
In a five-to-four decision, the Court held that the showing of the film with a projector was a "search" and therefore the showing violated the fourth amendment. Justice Stevens authored the lead opinion for the majority, saying (447 U.S. at 654, 100 S.Ct. at 2400):
(N)otwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.It is perfectly obvious that the agents' reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation-that is to say, a search of the contents of the films-was necessary in order to obtain the evidence which was to be used at trial.
The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field's opinion for the Court in Ex parte Jackson, 96 U.S. 727, 24 L.Ed. 877, established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.
(Citations and footnotes omitted).
In the instant case, on the contrary, Jabara's very words, summaries of which were supplied to the FBI, had been lawfully intercepted by and were in the records of the NSA. NSA therefore already had in its records, after it intercepted, all that it supplied to the FBI. Jabara appears to argue, however, that the fact that the NSA acquired, stored and retrieved a large amount of information using sophisticated, high-technology methods and equipment should lead to the conclusion that the NSA's acquisition of Jabara's telegraphic messages was not a search and that the only search occurred when, at the request of the FBI, the NSA retrieved Jabara's messages and delivered summaries to the FBI. There are two difficulties with this argument. First, the simple fact remains that the NSA lawfully acquired Jabara's messages, and these are all that it delivered to the FBI. Second, to the extent that Jabara relies on alleged facts surrounding the methods and technology of acquisition, storage and retrieval of information, such are, as was held by the district court, subject to the state secret privilege. It was recognition of the effect of the privilege that caused the district court to limit its consideration to the question whether the targeting of Jabara's communications by the FBI, in obtaining the summaries from the NSA, was a fourth amendment violation irrespective of the facts surrounding the acquisition, storage and retrieval of the information by the NSA. ... [snip discussion of "Bailey" case, where a warrant is required to insert a "beeper" to track a drum of chemicals] ...
We consider it irrelevant whether a particular governmental intrusion is classified as a "search" or as a "seizure." What matters is whether it violates an individual's legitimate expectation of privacy. Therefore, it is not necessary to speculate whether a beeper "searches" or "seizes" anything.
Our court then quoted (628 F.2d at 941) from Justice Harlan's concurring opinion in Katz to the effect that, while a reasonable expectation of privacy is the test, this means that the person asserting the claim must have exhibited an actual (subjective) expectation of privacy and that the expectation must be one that society is prepared to accept as reasonable.
Applying this analysis utilized by our court in Bailey, we agree that Jabara exhibited an actual (subjective) expectation of privacy when he sent the telegraphic massages overseas. But the question here is whether he had an expectation of privacy that society is prepared to recognize as reasonable after the messages had lawfully come into the possession of the NSA. For it was after the messages were intercepted and within the possession of the NSA and only when they were delivered to the FBI that Jabara contents that his fourth amendment rights were violated. We do not believe that an expectation that information lawfully in the possession of a government agency will not be disseminated, without a warrant, to another government agency is an expectation that society is prepared to recognize as reasonable. In this connection, we believe that it is irrelevant that Jabara did not know that the NSA had intercepted his messages. To hold otherwise would in many instances require, for fourth amendment purposes, a succession of warrants as information, lawfully acquired, is passed from one agency to another.
We conclude, therefore, that Jabara's fourth amendment rights were not violated when the FBI obtained summaries of his overseas telegraphic communications from NSA and that the district court erred in granting summary judgment to Jabara and that, on the contrary, it should have granted summary judgment to defendants as to this claim.
MERRITT, Circuit Judge, dissenting from the order of the Court denying a rehearing en banc.I believe that Jabara's Fourth Amendment rights were probably violated when the FBI, without a warrant, requested and received summaries of Jabara's overseas messages. I am of the opinion that the issue is of sufficient importance to require a hearing by the full Court.
The fact pattern admits obfuscation, since more than one government agency is involved. I'll try to make a short version with regard to the "warrantless wiretapping" charge. The lower court held that the government action violated Jabara's fourth amendment rights because the FBI selection of NSA intercepts ("give us all your Jabara stuff") targeted Jabara, was not accompanied by a warrant, and Jabara did not fit the "foreign agent" definition.
The Circuit Court of appeals construed the lower court decision in a specific way, "that Jabara's fourth amendment rights were violated when the FBI, without a warrant, obtained the summaries of his overseas telegraphic communications." The Circuit Court focused on the passing of information from the NSA to the FBI, and blew off any questions about the obtaining or "filtering" of NSA-held data. Intellectually, that's pretty cheezy. At any rate, the Circuit Court said the NSA surveillance was lawfully received because Jabara didn't assert otherwise; and information in the lawful possession of the NSA can be passed to the FBI without a warrant.
I think the fact pattern is pretty square with the fact pattern at hand in the current NSA debate; but if you take the Circuit Court case on it's face, it doesn't probe the questions of obtaining, filtering or forwarding NSA-held data. In that sense, I think it isn't helpful. As a matter of intellectual pursuit, the two cases together are darn good.
Eventually, what one who studies this stuff realizes, is that nearly ALL appellate cases are outcome driven. The fact that this Circuit Court decision is (IMO) logically weak does not mean that its outcome would not be upheld under a Supreme Court review. Right now, this case is the law of the Circuit.